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CAPE HATTERAS NATIONAL SEASHORE NEGOTIATED RULEMAKING FEASIBILITY

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					   CAPE HATTERAS NATIONAL
    SEASHORE: NEGOTIATED
RULEMAKING FEASIBILITY REPORT


                     PREPARED BY
   THE CONSENSUS BUILDING INSTITUTE, CAMBRIDGE, MA
  AND FISHER COLLABORATIVE SERVICES, ALEXANDRIA, VA
                   UNDER CONTRACT TO THE
                  UNITED STATES INSTITUTE
          FOR ENVIRONMENTAL CONFLICT RESOLUTION



                      APRIL 4, 2006
EXECUTIVE SUMMARY

Introduction and Overview
In early 2005, the National Park Service (NPS) sought to explore the feasibility of using a
consensus process to develop regulations for off-road vehicle (ORV) use within Cape Hatteras
National Seashore (CAHA). NPS requested assistance from the U.S. Institute for Environmental
Conflict Resolution, which worked with CAHA and stakeholders to select a team of neutral
mediators to conduct a consensus process Feasibility Assessment. The assessment team
consisted of Patrick Field, Managing Director of the Consensus Building Institute (CBI), Robert
Fisher1, of Fisher Collaborative Services (FCS), and Ona Ferguson and Veronica Morris of CBI.2

The purpose of this Feasibility Assessment is to evaluate whether a consensus-based negotiation
process could be convened and, if so, whether it is likely to be successful in resolving issues
around CAHA ORV management and regulations. This Feasibility Assessment is based on
information gathered from interviews with 55 stakeholders regarding their experience with the
current management of CAHA and their ideas for future management and regulations.


Description of the Assessment Process and Methodology
This Assessment is based on confidential, voluntary interviews with fifty-five (55) individuals
who hold a range of views on ORV management at CAHA. The interviewees are affiliated with
businesses, environmental groups, recreational and commercial fishing, local civic organizations,
ORV groups, and other organizations concerned about ORV management at CAHA. Our
interviewees gave us feedback on our draft Feasibility Assessment in June and July 2005. In
August we released pre-convening applications, the forms stakeholder groups used to request
that their group be on the Committee and through which they proposed members and alternates
to represent their organization. We accepted the pre-convening applications in August and
September 2005, while incorporating interviewee feedback on our draft Feasibility Assessment.
After receiving the pre-convening application forms, we worked with stakeholder groups to
determine who to recommend for committee membership. In December we made our
preliminary recommendations for committee membership and draft Feasibility Report publicly
available. We took public comment on these through January 2006. This final Feasibility
Assessment incorporates the comments and feedback we received from interviewees and
members of the public to the best of our ability to capture their questions, suggestions and
concerns.

Please note that the assessment team’s role is to provide an accurate, impartial analysis of the
situation to assist the NPS and the other stakeholders in determining whether a consensus-based
negotiation will meet their objectives. We do not advocate for any particular outcome or
interest, and we conduct our work in a fair, deliberate, and non-partisan fashion.

1
  Greg Sobel and Kim Vogel of Environmental Mediation Services originally were selected as part of the assessment
team with CBI. Following Mr. Sobel’s unexpected death, Robert Fisher replaced him and Kim Vogel resigned from
the team to attend to Greg’s affairs. Robert Fisher was with RESOLVE, a non-profit environmental dispute
resolution and consensus building organization, when he joined the assessment team and through October 2005.
2
  CBI is a non-profit organizations specializing in consensus-based solutions to public resource problems.


CAHA Negotiated Rulemaking Feasibility Report           i                                          April 4, 2006
Negotiated Rulemaking Process
As explained in the interviews, the negotiated rulemaking process is based on the principle that
agencies can create better regulations by developing new regulations jointly with the people
affected by the contemplated regulation. Negotiated rulemaking is a consensus-based decision
making process. The parties involved in the negotiation process agree in advance that they seek
an agreement that all the members of the Committee can live with. The negotiated rulemaking
process will run concurrently and be integrated with the National Environmental Policy Act
(NEPA) process and study.

Description of the Situation
Cape Hatteras National Seashore (CAHA or the Park) was established in 1953. Of the 70 miles
of Atlantic Ocean, beaches and inlets that front Bodie, Hatteras and Ocracoke Islands, CAHA
encompasses approximately 53 miles of shoreline and inlet and 50 miles of sound-side habitats
and beaches. The 13 miles of beach that comprise Pea Island National Wildlife Refuge are
within the CAHA boundary, and are managed separately and under a different regulatory
framework by the U.S. Fish and Wildlife Service (USFWS).

The use of ORVs to pursue recreational activities is popular in CAHA with certain visitors and
attracts visitors throughout the year. Because ORV use may conflict with the protection of
CAHA resources, including protected species, and with the use of CAHA for non-motorized
activities, ORV use has been a much-discussed subject in the Outer Banks and beyond. Even
though there are some marked ORV trails, concerns about resource loss and visitor conflicts
continue to be unresolved issues. CAHA is required to have an ORV management plan and
currently does not. These requirements stem from the Organic Act, the CAHA enabling
legislation, 36 CFR 4.10 (b), and Executive Orders 11644 and 11989. Moreover, NPS received a
Petition for Rulemaking on ORV management at CAHA under the Administrative Procedures
Act from several environmental organizations and a Notice of Intent to Sue concerning
protection of endangered species and consultation with the USFWS. A judge’s recent order
invalidating USFWS’s Critical Habitat designation for the wintering piping plover is also at
issue.

Findings: Summary of Key Themes
The following brief summary of the key points we heard in our interviews touches on the themes
we heard most consistently and from a wide range of interviewees.

•   Most people believe that ORV use, other uses, and protected species should be able to co-
    exist on the beach, though not necessarily on the same stretch of beach at the same time (and,
    not surprisingly, they differed in how this might work).
•   There are concerns that protected species, as well as non-listed plants and animals, are being
    harmed due to unintentional or careless action by beach users and management action, and
    that wildlife species and plants are constantly at risk on the beach.
•   There are concerns that the beach is gradually being taken away from ORV users and that
    ORV use prohibitions will become permanent, with accompanying effects on economics and
    activities that people love.




CAHA Negotiated Rulemaking Feasibility Report   ii                                    April 4, 2006
•   There are likewise concerns that CAHA practices favor the interests of ORV users over other
    park users and resources.
•   Many people are concerned that there are inadequate opportunities for wilderness-based
    recreation and that conflicts between those using ORV for recreation and those pursuing
    other forms of recreation need to be addressed.
•   People want to avoid ad-hoc management of ORV use and to bring CAHA into compliance
    on ORV management through the certainty and predictability that a management plan and
    regulations will provide.
•   All interviewees expressed an interest in the idea of using a negotiated rulemaking process.
•   Many people believe the negotiated rulemaking process is the best way to address all of the
    needs and concerns.
•   There is a range of willingness to participate in a negotiated rulemaking process, from
    enthusiastic to skeptical but willing, depending on how the process is structured and whether
    groups will refrain from pursuing litigation, political influence and other means to influence
    the process.
•   There also is a range of views about the likelihood of success of a negotiated rulemaking
    process, from cautious optimism to skepticism about whether other stakeholders are willing
    to make compromises and find common ground.
•   People need to understand and trust the information, science and other requirements
    justifying management decisions, including both biological and socio-economic impact data.
•   People are aware of the legal, political, financial, resource, and other pressures on NPS.
•   Many long-time residents have been frustrated and saddened by the present relationship
    between the community and NPS, want to improve it, and see the appointment of Mike
    Murray as permanent superintendent as a positive step.
•   People are passionate about the place where they live and about their beliefs that protecting
    environmental resources is crucial.

This section is divided into 12 major subject areas that were consistently raised by the
stakeholders the assessment team interviewed. These are: the unique and changing Outer Banks
culture, economic impacts, park user conflicts, natural resources protection, ORV use and
management, pressures on CAHA, relationship between the NPS and local communities, CAHA
leadership, enforcement and staffing, approaches to managing ORV use, data and research needs,
and process recommendations.

Review and Analysis of the Requirements for a Regulatory Negotiation
Based on our interviews and our analysis of the criteria in the federal Negotiated Rulemaking
Act of 1990, we believe a regulatory negotiation for the CAHA situation will satisfy the
requirements of the Negotiated Rulemaking Act, as more fully described below.

Recommendations for a Negotiated Rulemaking Process
Based on our interviews, analysis of that information, and on-going consultation with
stakeholders, we have concluded:

        In our best professional judgment, a consensus-based negotiation to develop a
        management plan and proposed implementing regulations can be convened, can yield




CAHA Negotiated Rulemaking Feasibility Report   iii                                   April 4, 2006
        important benefits even if agreement is not reached, and has a modest chance of success
        if the conditions described below are met.

Our recommendation is based on the interviews, our analysis of the requirements for a negotiated
rulemaking, our analysis of the current situation, and our experience with similar processes at
other national seashores. Should the NPS decide to proceed, we suggest that the process would
include the following steps.

1.   Issue a Notice of Intent to Proceed with Negotiated Rulemaking.
2.   Hold Collaborative Training Workshops for Stakeholders.
3.   Develop Draft Groundrules for the Process.
4.   Participate in Joint Education.
5.   Develop a Charter and Final Membership for the Negotiated Rulemaking Committee under
     the Federal Advisory Committee Act.
6.   Provide Advice on Developing the Preliminary Alternatives for the NEPA Management
     Planning Process.
7.   Analyze Impacts and Seek Consensus on the Preferred Alternative for the NEPA
     Management Planning Process.
8.   Seek Consensus on ORV Management Plan and Regulations for Cape Hatteras National
     Seashore.

We recommend that the NPS and the Committee establish a set of key milestones for assessing
the Committee’s progress and determining if the process is meeting the interests of the
participants and, if not, for ending the process even if the Committee has not completed its work.
This approach can ensure clarity on the process and provide opportunities to improve how the
Committee is working together. We also recommend a consensus decision/rule for the
Committee.

We also recommend that the NPS and Secretary of Interior establish a Committee exceeding the
25 member limit in the Federal Advisory Committee Act is warranted to ensure the Committee is
balanced and the range of interests with a stake in the issues are adequately represented. We are
putting forward to the Park a list of 28 individuals who represent the range of interests with a
stake in the off-road driving issues. We offer these recommendations after extensive consultation
with stakeholders, comment on earlier drafts by interviewees, a public application process, and a
public comment period. Stakeholder representatives are from government agencies, local
governments, homeowner associations, business, tourism, and visitors, environmental and
natural resource advocates, off-road drivers, recreational fisherman, commercial fishermen, open
access advocates, and other kinds of users of the resource.

With the release of this Feasibility Report, the list of recommended representatives and alternates
will be forwarded to the NPS for review. NPS will then review it and forward the list, with any
changes, to the Department of Interior. After approval by the Department of Interior, the Notice
of Intent to Establish a Negotiated Rulemaking Committee identifying the proposed Committee
members and alternates would be published in the Federal Register. There will be a 30-day
public comment period after publication, followed by a NPS analysis of the comments, and a




CAHA Negotiated Rulemaking Feasibility Report   iv                                    April 4, 2006
final decision on whether to proceed and if so the composition of the Committee, based on public
comments

Additional Recommendations for a Negotiated Rulemaking Process
The following additional recommendations could significantly improve the process and the
likelihood for success.

1. The Committee’s objectives and the scope of its authority as expressed in the charter needs to
   allow the Committee to advise the NPS on actions related to on-going ORV use management
   during the process in addition to the development of ORV regulations.

2. The NPS and potential Committee members need to commit sufficient resources to insure the
   likelihood of success.

3. NPS and the Department of the Interior should expedite the necessary administrative
   procedures to initiate negotiated rulemaking.

4. The NPS and Stakeholder representatives on the Committee need to provide consistent
   leadership during the multi-year process to develop final regulations.

5. NPS should take advantage of the period between publishing the Notice of Intent to Proceed
   with Rulemaking and the first meeting of the Committee to review the work of the
   assessment team and determine whether the CBI/FCS team working under the auspices of the
   U.S. Institute for Environmental Conflict Resolution is acceptable to the Committee
   members to facilitate the negotiated rulemaking process.

Conditions to Ensure Participation in the Negotiated Rulemaking Process
During the assessment process, we identified nine conditions that must be addressed for the
process to commence and to increase the likelihood of success of the process:

    A. The focus and starting point of the negotiated rulemaking needs to be on how to manage
       ORV use on CAHA consistent with all applicable laws, regulations, orders, and policies,
       rather than if there will be any ORV use on the beach at CAHA. The proposed regulation
       developed by the Negotiated Rulemaking Committee (Committee) and recommended to
       NPS must (a) be consistent with and comply with all applicable laws, regulations, orders,
       and policies, (b) provide for a diversity of visitor experience, (c) include enforceable
       mechanisms to manage ORV use; and (d) be implementable.

    B. The NPS must establish interim plans for managing protected species and user conflicts
       while the Committee is conducting its work. The NPS must consult with the U.S. Fish
       and Wildlife Service (USFWS) under Section 7(a)(1) and 7(a)(2) of the Endangered
       Species Act (ESA) and put in place a legally defensible “livable” interim protected
       species management strategy.3

3
  We note NPS released the Environmental Assessment on the Interim Protected Species Management Strategy
(IPSMS) on January 18, 2006, and the public comment period closed on March 1, 2006. We understand NPS is in
the process of evaluating comments, consulting with FWS, and waiting to receive a Biological Opinion from FWS


CAHA Negotiated Rulemaking Feasibility Report          v                                         April 4, 2006
    C. To the greatest extent possible, the Committee should build a management approach to
       ORV use “from the ground up” to build a new approach that is not limited necessarily by
       previous interim plans.

    D. Participating organizations and their representatives need to commit to making the
       negotiated rulemaking process the primary and central focus of their efforts to address
       issues related to ORV use on CAHA and curtail using other means to influence the
       proposed regulations during the negotiated rulemaking process. This does not mean
       participating organizations are relinquishing or waiving any legal rights.

    E. To meet the requirements of NEPA and to generate new approaches and potential
       solutions, participating organizations and their representatives need to be willing to
       explore a range of management options and scenarios, even if they at least initially find
       those options unappealing or highly unlikely to be acceptable to their constituents.

    F. NPS must commit, to the maximum extent possible consistent with its legal and policy
       obligations, to use the consensus of the Committee as the basis for the regulation
       proposed by NPS for notice and comment.

    G. NPS must establish a firm deadline by which – (a) the Committee will complete its work
       and propose a regulation, or (b) if consensus is not possible, the negotiated rulemaking
       process will be terminated, and NPS will take appropriate and timely action to
       promulgate a regulation to regulate ORV use on CAHA.

    H. Management of ORV use at Pea Island National Wildlife Refuge will not be included in
       the negotiated rulemaking process, as the Refuge is managed by USFWS rather than by
       NPS and is managed under a different set of laws and regulations.

    I. Participating organizations and their representatives need to commit to working civilly
       and collaboratively, even with those with whom they may disagree strongly.




before finalizing the plan and preparing the decision document for the plan. We also understand completion of the
approval process and implementation of the strategy is anticipated to occur in April 2006.


CAHA Negotiated Rulemaking Feasibility Report           vi                                          April 4, 2006
TABLE OF CONTENTS
EXECUTIVE SUMMARY ................................................................................................................................................I
INTRODUCTION AND OVERVIEW ........................................................................................................................... 1
         Description of the Assessment Process and Methodology....................................................................................... 4
         Negotiated Rulemaking Process ................................................................................................................................ 6
         Organization of the Feasibility Assessment .............................................................................................................. 7
DESCRIPTION OF SITUATION ................................................................................................................................... 8
FINDINGS ......................................................................................................................................................................... 12
         Summary of Key Themes .......................................................................................................................................... 12
         1. Unique and Changing Outer Banks Culture ...................................................................................................... 13
         2. Economic Impacts ................................................................................................................................................ 14
         3. Park User Conflicts .............................................................................................................................................. 14
         4. Natural Resource Protection ............................................................................................................................... 15
         5. ORV Use and Management.................................................................................................................................. 17
         6. Pressures on CAHA.............................................................................................................................................. 20
         7. Relationship between NPS and Local Communities .......................................................................................... 21
         8. CAHA Leadership................................................................................................................................................. 24
         9. Enforcement and Staffing..................................................................................................................................... 24
         10. Approaches to Managing ORV Use .................................................................................................................. 25
         11. Data and Research Needs.................................................................................................................................. 27
         12. Process Suggestions ........................................................................................................................................... 28
REVIEW AND ANALYSIS OF THE REQUIREMENTS FOR A REGULATORY NEGOTIATION............ 30
         1. Need for a Rule ................................................................................................................................................. 30
         2. Limited number of identifiable interests significantly affected by the rule................................................... 30
         3. Reasonable likelihood a balanced, representative committee can be convened .......................................... 31
         4. Reasonable likelihood the committee will reach consensus within a fixed period of time .......................... 32
         5. Negotiated rulemaking will not unreasonably delay the notice of proposed rulemaking ........................... 34
         6. Agency has and is willing to commit adequate resources to support the committee ................................... 35
         7. Agency, to the maximum extent possible consistent with legal obligations, commits to use committee
         consensus as the notice of proposed rulemaking.................................................................................................... 36
RECOMMENDATIONS AND CONDITIONS FOR A NEGOTIATED RULEMAKING PROCESS............. 37
         Recommendations..................................................................................................................................................... 37
             1. Proceed with Reg-Neg .........................................................................................................................................................37
             2. Stage the Process..................................................................................................................................................................37
             3. Establish Milestones ............................................................................................................................................................40
             4. Use Consensus......................................................................................................................................................................40
             5. Expand the Committee Size ................................................................................................................................................41
         Additional Considerations ....................................................................................................................................... 42
         Conditions to Ensure Participation in the Negotiated Rulemaking Process........................................................ 44
RECOMMENDATIONS TO NPS FOR COMPOSTION OF THE COMMITTEE ............................................ 51
         Pre-Convening Process............................................................................................................................................ 51
         Stakeholder Identification ........................................................................................................................................ 53
         Committee Balance of Stakeholder Representatives .............................................................................................. 53
         Members, Alternates, Observers, and Liaisons ...................................................................................................... 54
         Criteria for Representatives..................................................................................................................................... 54
         Summary of Public Comment on the Pre-Convening Recommendations ............................................................. 55
         Recommendations to the NPS for a Committee Composition................................................................................ 57
             6. Compose the Committee......................................................................................................................................................57




CAHA Negotiated Rulemaking Feasibility Report                                                  vii                                                                          April 4, 2006
                                          ATTACHMENTS
ATTACHMENT A: INTERVIEW PROTOCOL
ATTACHMENT B: PEOPLE INTERVIEWED
ATTACHMENT C: PROPOSED STAKEHOLDER RECOMMENDATION FOR THE COMMITTEE
ATTACHMENT D: BASIC PRINCIPLES FOR AGENCY ENGAGEMENT IN ENVIRONMENTAL CONFLICT
              RESOLUTION AND COLLABORATIVE PROBLEM SOLVING
ATTACHMENT E: RESPONSES FROM ORGANIZATIONS TO PUBLIC COMMENTS
ATTACHMENT F: PUBLIC COMMENTS RECEIVED DECEMBER 2005-JANUARY 2006 ON THE DRAFT
               LIST OF PROPOSED STAKEHOLDERS FOR POTENTIAL REGULATORY
               NEGOTIATION COMMITTEE




CAHA Negotiated Rulemaking Feasibility Report   viii                  April 4, 2006
INTRODUCTION AND OVERVIEW

In early 2005, the National Park Service (NPS) sought to explore the feasibility of using a
consensus process to develop regulations for off-road vehicle (ORV) use within Cape Hatteras
National Seashore (CAHA). NPS requested assistance from the U.S. Institute for Environmental
Conflict Resolution, which worked with CAHA and stakeholders to select a team of neutral
mediators to conduct a consensus process Feasibility Assessment. The assessment team
consisted of Patrick Field, Managing Director of the Consensus Building Institute (CBI), Robert
Fisher4, of Fisher Collaborative Services (FCS), and Ona Ferguson and Veronica Morris of CBI.5

The purpose of this Feasibility Assessment is to evaluate whether a consensus-based negotiation
process could be convened and, if so, whether it is likely to be successful in resolving issues
around CAHA ORV management and regulations. This Feasibility Assessment is based on
information gathered from interviews with 55 stakeholders regarding their experience with the
current management of CAHA and their ideas for future management and regulations.

CBI and FCS approach the Feasibility Assessment as a process of shared learning, creating a
picture with the parties of what they could gain from a consensus process, what challenges they
perceive, what process considerations would be constructive, and the problems and opportunities
presented by the situation. To determine whether a consensus-based negotiation process is likely
to be successful in resolving issues about ORV use regulations at CAHA, this Feasibility
Assessment considers whether the key government agencies, organizations and individuals
concerned with the issue (i.e., "the stakeholders") can be clearly identified, have sufficient
overlapping interests, a willingness to work together despite differences and the capacity to
negotiate. We also developed conditions that would have to be addressed for certain
stakeholders to participate in a negotiated rulemaking process and conducted a pre-convening to
determine potential members and alternates on a Negotiated Rulemaking Committee.

This assessment report presents a summary of (1) the information obtained from the interviews,
(2) recommendations concerning the process, and (3) recommendations concerning convening
the process, and (4) other considerations as NPS and the stakeholders determine whether to
proceed with a negotiated rulemaking process.6




4
  Greg Sobel and Kim Vogel of Environmental Mediation Services originally were selected as part of the assessment
team with CBI. Following Mr. Sobel’s unexpected death, Robert Fisher replaced him and Kim Vogel resigned from
the team to attend to Greg’s affairs. Robert Fisher was with RESOLVE, a non-profit environmental dispute
resolution and consensus building organization, when he joined the assessment team and through October 2005.
5
  CBI is a non-profit organizations specializing in consensus-based solutions to public resource problems.
6
  Please note that this assessment is not a legal document, technical report, nor an exhaustive study of all those
individuals and organizations with a stake in the management of CAHA. The assessment is limited by the
information gathered in the interviews we conducted and our interpretation of that information. While it is not
feasible to speak to every person with a stake in the management of the CAHA, we believe this assessment
accurately reflects most, if not all, of the range of views held.


CAHA Negotiated Rulemaking Feasibility Report           1                                           April 4, 2006
        KEY RECOMMENDATION: In our best professional judgment, we conclude
        that a consensus-based negotiation to develop a management plan and proposed
        implementing regulations can be convened, can yield important benefits even if
        agreement is not reached, and has a modest chance of success if the conditions
        described below are met.

We make this recommendation based on our 55 interviews, on-going consultations with
stakeholders and the National Park Service, and the information obtained and lessons learned
from the pre-convening process. In summary, we offer our reasoning for the above
recommendation.

1)      Through our pre-convening process, described in more detail later in the report, we were
        able to identify representatives for the Negotiated Rulemaking Committee, although there
        is not broad agreement on the exact make-up and balance of the Committee. There is
        strong interest in participation from the full range of stakeholder groups interested in how
        ORV use is managed on the National Seashore. The pre-convening process did raise
        certain challenges to convening the Committee, including the 25-person limit on the size
        of the Committee, the difficulty in representing the interests and views of the general
        visitor at large to the Park on the Committee, and the balance of interests on the
        Committee. We discuss these issues later in the Report.

2)      We conclude, and many stakeholders have suggested, that even if the Committee is not
        able to reach a final consensus on an ORV management plan and regulations, the process
        can and will produce many benefits. These benefits include:

        a. A far more detailed, nuanced understanding of other stakeholders’ interests by all
           who participate and by the public;
        b. New and creative ideas for addressing some or all of the issues raised in considering
           different alternatives and developing a preferred NEPA alternative and the subsequent
           regulations for managing ORV use on Cape Hatteras National Seashore;
        c. Improved communication, and possibly relationships, among the Park and its
           stakeholders, and among different stakeholder groups;
        d. A far better informed NEPA process and rulemaking process that can take into
           account and better balance multiple interests, even if the Negotiated Rulemaking
           Committee does not reach a final consensus;
        e. An opportunity to put into practice the federal government’s Basic Principles for
           Agency Engagement in Environmental Conflict Resolution and Collaborative
           Problem Solving (See Appendix D for the Principles).

3)      We conclude that the chances of reaching a final consensus on a final regulation for ORV
        use on Cape Hatteras National Seashore are modest. Most stakeholders have expressed
        hope in a collaborative process. Many stakeholders stated that the alternatives to
        engaging in a collaborative process are limited and uncertain, at best. These stakeholders
        worry that the Park could not issue a final rule balancing the multiple interests at stake
        without extensive stakeholder participation and furthermore, that if the courts were to


CAHA Negotiated Rulemaking Feasibility Report    2                                     April 4, 2006
         become the dictating force the outcome might even be less satisfactory. Many
         stakeholders have noted the benefits listed in number two above even if agreement is not
         reached. At the same time, many stakeholders recognize how difficult it will be to reach
         a final consensus. Numerous parties, at this time, have stated very strongly held and
         divergent positions on how to manage ORV use on Cape Hatteras. Litigation on or
         related to this matter is already underway. Some parties feel that differing voices among
         visitors and local residents are neither well-organized nor easy to surface or bring into the
         deliberations. While parties have stated a willingness to abide by groundrules, tensions
         are high, many do not believe the other parties are willing or in some instances capable of
         abiding by the groundrules, many parties feel under attack, and some have engaged in
         personal and ad hominem7 attacks. Given all these factors, reaching consensus will be
         time-consuming, challenging, and test the ability of everyone’s patience.

We have identified nine conditions that we believe must be addressed for the process to
commence and to increase the likelihood of success of the process:

J.       The focus and starting point of the negotiated rulemaking needs to be on how to manage
         ORV use on CAHA consistent with all applicable laws, regulations, orders, and policies,
         rather than if there will be any ORV use on the beach at CAHA. The proposed regulation
         developed by the Negotiated Rulemaking Committee (Committee) and recommended to
         NPS must (a) be consistent with and comply with all applicable laws, regulations, orders,
         and policies, (b) provide for a diversity of visitor experience, (c) include enforceable
         mechanisms to manage ORV use; and (d) be implementable.

K.       The NPS must establish interim plans for managing protected species and user conflicts
         while the Committee is conducting its work. The NPS must consult with the U.S. Fish
         and Wildlife Service (USFWS) under Section 7(a)(1) and 7(a)(2) of the Endangered
         Species Act (ESA) and put in place a legally defensible “livable” interim protected
         species management strategy.8

L.       To the greatest extent possible, the Committee should build a management approach to
         ORV use “from the ground up” to build a new approach that is not limited necessarily by
         previous interim plans.

M.       Participating organizations and their representatives need to commit to making the
         negotiated rulemaking process the primary and central focus of their efforts to address
         issues related to ORV use on CAHA and curtail using other means to influence the


7
  An ad hominem attack consists of asserting that someone's viewpoint is wrong or they are wrong to state it purely
because of something discreditable or not-authoritative about the speaker or people cited by the speaker, rather than
addressing the soundness of the viewpoint itself. The implication is that the person's view or their ability to state it
lacks authority in some way.
8
  We note NPS released the Environmental Assessment on the Interim Protected Species Management Strategy
(IPSMS) on January 18, 2006, and the public comment period closed on March 1, 2006. We understand NPS is in
the process of evaluating comments, consulting with FWS, and waiting to receive a Biological Opinion from FWS
before finalizing the plan and preparing the decision document for the plan. We also understand completion of the
approval process and implementation of the strategy is anticipated to occur in April 2006.


CAHA Negotiated Rulemaking Feasibility Report               3                                             April 4, 2006
        proposed regulations during the negotiated rulemaking process. This does not mean
        participating organizations are relinquishing or waiving any legal rights.

N.      To meet the requirements of NEPA and to generate new approaches and potential
        solutions, participating organizations and their representatives need to be willing to
        explore a range of management options and scenarios, even if they at least initially find
        those options unappealing or highly unlikely to be acceptable to their constituents.

O.      NPS must commit, to the maximum extent possible consistent with its legal and policy
        obligations, to use the consensus of the Committee as the basis for the regulation
        proposed by NPS for notice and comment.

P.      NPS must establish a firm deadline by which – (a) the Committee will complete its work
        and propose a regulation, or (b) if consensus is not possible, the negotiated rulemaking
        process will be terminated, and NPS will take appropriate and timely action to
        promulgate a regulation to regulate ORV use on CAHA.

Q.      Management of ORV use at Pea Island National Wildlife Refuge will not be included in
        the negotiated rulemaking process, as the Refuge is managed by USFWS rather than by
        NPS and is managed under a different set of laws and regulations.

R.      Core democratic principles of decency, civility, and tolerance must be exercised if the
        process is to succeed. Parties must be willing to envision and shape a future for all users
        and people interested in CHNS, including descendents of families living on the Outer
        Banks when the national seashore was established, newer property owners and visitors,
        and those that care about the ecology or preservation of the national seashore and national
        parks. Parties also must be willing to accept there are different views (locally, regionally,
        and nationally) and the different stakeholders each have a right to be part of determining
        the solutions. Committee representatives must exercise leadership within their respective
        constituencies to foster a climate of joint problem solving on the Committee and publicly,
        to keep their constituencies informed, and to ensure their constituents support rather than
        undermine the process.

Additional recommendations regarding the process and the convening are set forth later in this
report.

DESCRIPTION OF THE ASSESSMENT PROCESS AND METHODOLOGY

This Assessment is based on confidential, voluntary interviews with fifty-five (55) individuals
who hold a range of views on ORV management at CAHA. The interviews were conducted in
April and May 2005. The interviewees are affiliated with businesses, environmental groups,
recreational and commercial fishing, local civic organizations, ORV groups, and other
organizations concerned about ORV management at CAHA. Many interviews were conducted
in-person in Manteo, Buxton, and Kill Devil Hills, North Carolina and in Washington, D.C.,
while some interviews were conducted by telephone.



CAHA Negotiated Rulemaking Feasibility Report     4                                     April 4, 2006
The individuals we interviewed were drawn from an extensive stakeholder list. First, CAHA
staff prepared a list of potential interviewees across a broad spectrum of interests and
geographical areas. The assessment team contacted approximately 70 individuals and
organizations and invited them to participate in an interview. Of the group of 15 or so we didn’t
end up interviewing, some we never managed to get in touch with while others didn’t think it
made sense to interview them and directed us to talk with additional people. In the interviews,
participants identified additional people who were subsequently contacted to arrange a second
round of interviews. In addition, a few individuals who heard about the interviews contacted the
assessment team directly and requested an interview. During the interviews, we also gathered
recommendations for organizations people thought should participate if a negotiation process is
pursued.

We spent approximately 45-90 minutes talking with each of the interviewees. We explained to
each interviewee that their answers would be confidential in that particular statements would not
be attributed to individuals or organizations. We made extensive notes on each interview, and
summarized the interviews for our internal use. We also reviewed various documents provided
to us by NPS and some of the interviewees. We then compiled comments by subject and issue.
The draft Feasibility Assessment was submitted to the interviewees in June 2005.

Our interviewees gave us feedback on our draft Feasibility Assessment in June and July 2005. In
August we released pre-convening applications, the forms stakeholder groups used to request
that their group be on the Committee and through which they proposed members and alternates
to represent their organization. We accepted the pre-convening applications in August and
September 2005, while incorporating interviewee feedback on our draft Feasibility Assessment.
After receiving the pre-convening application forms, we worked with stakeholder groups to
determine who to recommend for committee membership. In December we made our
preliminary recommendations for committee membership and draft Feasibility Report publicly
available. We took public comment on these through January 2006. This final Feasibility
Assessment incorporates the comments and feedback we received from interviewees and
members of the public to the best of our ability to capture their questions, suggestions and
concerns.

In the interviews, the assessment team asked the interviewees about their views of:

        •   Current use of the seashore and ORVs on CAHA.
        •   What changes they’d like to see in the way ORV use is managed on CAHA.
        •   How the system currently in place for managing ORV use is working.
        •   What interests need to be involved in formulating ORV use regulations on CAHA.
        •   The potential for a collaborative process to result in an agreement by all stakeholders.
        •   Suggestions for making the collaborative process productive.
        •   Potential conditions to participation in a collaborative process.

Please see the attached interview protocol used by the assessment team as a general guide for
conducting the interviews (Attachment A).




CAHA Negotiated Rulemaking Feasibility Report     5                                     April 4, 2006
We have organized the individuals and representatives of organizations, agencies, and businesses
interviewed in the following broad stakeholder categories. We attempted to ensure that the
interviewees represented a broad range of interests. In this situation, many individuals play
several roles in their communities, and may be part of several different organizations, which
makes it challenging to assign individuals to one stakeholder category. See the attached list of
interviewees and their primary affiliations (Attachment B).

Stakeholder Groups and Number of Representatives Interviewed:

              STAKEHOLDER GROUP                                       # INTERVIEWED
              Businesses                                              5
              Environmental Groups – National                         8
              Environmental Groups - Regional/State                   5
              Government – County                                     1
              Government – Federal                                    3
              Government – State                                      6
              Local Civic Associations                                9
              Unaffiliated Residents & Other Individuals              4
              Park Use Groups                                         14
              TOTAL # OF PEOPLE INTERVIEWED                           55

Please note that the assessment team’s role is to provide an accurate, impartial analysis of the
situation to assist the NPS and the other stakeholders in determining whether a consensus-based
negotiation will meet their objectives. We do not advocate for any particular outcome or
interest, and we must conduct our work in a fair, deliberate, and non-partisan fashion. Also, the
assessment team is bound by the Association for Conflict Resolution Model Standard of
Conduct, which provides that mediators must maintain impartiality toward all parties. “A
mediator shall mediate only those matters in which she or he can remain impartial and
evenhanded.”

NEGOTIATED RULEMAKING PROCESS

As explained in the interviews, the negotiated rulemaking process is based on the principle that
agencies can create better regulations by developing new regulations jointly with the people
affected by the contemplated regulation. Negotiated rulemaking is a consensus-based decision
making process. The parties involved in the negotiation process agree in advance that they seek
an agreement that all the members of the Committee can live with. The negotiated rulemaking
process will run concurrently and be integrated with the National Environmental Policy Act
(NEPA) process and study.

When federal agencies such as NPS use negotiated rulemaking, they must comply with the
Federal Advisory Committee Act (FACA) and other legal requirements.9 If the process results
in a consensus whereby the entire Committee concludes that it can live with the new regulation
9
 NPS has used a negotiated rulemaking process to develop management plans and regulations for two other
National Seashores, Cape Cod and Fire Island. NPS also has initiated or used the process at other parks.


CAHA Negotiated Rulemaking Feasibility Report          6                                          April 4, 2006
that it has developed, then that draft regulation can be used by NPS and moved through the
standard review, notice and comment procedures. Thus, this consensus-based approach to
developing regulations is a supplement to, not a substitute for, the usual federal rulemaking
process. To see NPS FACA guidance, go to:
http://www.nps.gov/policy/DOrders/facaguide.html.

ORGANIZATION OF THE FEASIBILITY ASSESSMENT

This document presents the assessment team's findings and recommendations. It consists of 11
sections. These are:

    1. Description of the Situation
    2. Findings, Organized by Topic
    3. Review and Analysis of the Requirements for a Regulatory Negotiation
    4. Recommendations and Conditions for a Negotiated Rulemaking Process
    5. Convening Recommendations
    Attachment A: Interview Protocol
    Attachment B: People Interviewed
    Attachment C: Proposed Stakeholder Recommendation for the Committee
    Attachment D: Basic Principles for Agency Engagement in Environmental Conflict
                   Resolution and Collaborative Problem Solving
    Attachment E: Responses from Organizations to Public Comments
    Attachment F: Public Comments Received December 2005-January 2006 on the Draft List of
                   Proposed Stakeholders for Potential Regulatory Negotiation Committee




CAHA Negotiated Rulemaking Feasibility Report   7                                     April 4, 2006
DESCRIPTION OF SITUATION

Cape Hatteras National Seashore (CAHA or the Park) was established in 1953. Of the 70 miles
of Atlantic Ocean, beaches and inlets that front Bodie, Hatteras and Ocracoke Islands, CAHA
encompasses approximately 53 miles of shoreline and inlet and 50 miles of sound-side habitats
and beaches. The 13 miles of beach that comprise Pea Island National Wildlife Refuge are
within the CAHA boundary, and are managed separately and under a different regulatory
framework by the U.S. Fish and Wildlife Service (USFWS).

Currently, all CAHA beaches are open to ORV use during the winter, except a section near the
Cape Hatteras Lighthouse. Some beaches may be closed to ORV use if they become too narrow.
About half (approximately 26 miles) of the beaches are open to ORV use during the summer
months. On the sound side, 17 access points are available to ORVs. However, only
approximately four miles of sound-side areas are open for ORV use because CAHA prohibits
ORV use on vegetated areas and most of the sound-side areas have vegetation. Closures vary
from year to year depending on a range of management considerations.

Regulatory Framework

The use of ORVs to pursue recreational activities is popular in CAHA with certain visitors and
attracts visitors throughout the year. Because ORV use may conflict with the protection of
CAHA resources, including protected species, and with the use of CAHA for non-motorized
activities, ORV use has been a much-discussed subject in the Outer Banks and beyond. Even
though there are some marked ORV trails, concerns about resource loss and visitor conflicts
continue to be unresolved issues. CAHA is required to have an ORV management plan and
currently does not. These requirements stem from the Organic Act, the CAHA enabling
legislation, 36 CFR 4.10 (b), and Executive Orders 11644 and 11989. Moreover, NPS received a
Petition for Rulemaking on ORV management at CAHA under the Administrative Procedures
Act from several environmental organizations and a Notice of Intent to Sue concerning
protection of endangered species and consultation with the USFWS. A judge’s recent order
invalidating USFWS’s Critical Habitat designation for the wintering piping plover is also at
issue.

The NPS Organic Act (16 U.S.C. §1) applies to all units of the National Park System, including
CAHA. It mandates NPS to manage park units to “conserve the scenery and the natural and
historic objects and the wild life therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the enjoyment of future
generations.”

CAHA was established by legislation, enacted in 1937, which provides that,

        “. . . said area shall be, and is hereby, established, dedicated, and set apart as a national
        seashore for the benefit and enjoyment of the people. . . (16 U.S.C. §459).




CAHA Negotiated Rulemaking Feasibility Report      8                                       April 4, 2006
        …the legal residents of villages…[within CAHA] shall have the right to earn a livelihood
        by fishing within the boundaries to be designated…subject to such rules and
        regulations…necessary in order to protect the area for recreational use….” (16 U.S.C.
        §459 a-1).

        Except for certain portions of the area, deemed to be especially adaptable for recreational
        uses, particularly swimming, boating, sailing, fishing, and other recreational activities of
        similar nature, which shall be developed for such uses as needed, the said area shall be
        permanently reserved as a primitive wilderness and no development of the project or plan
        for the convenience of visitors shall be undertaken which would be incompatible with the
        preservation of the unique flora and fauna or the physiographic conditions now prevailing
        in this area....“ (16 U.S.C. §459 a-2).

NPS regulations applicable to all units of the National Park System require that, “routes and
areas designated for off-road motor vehicle use shall be promulgated as special regulations. The
designation of routes and areas shall comply with Section 1.5 of this chapter and Executive
Order 11644 (37 FR 2887). Routes and areas may be designated only in national recreation
areas, national seashores, national lakeshores and national preserves.” (36 CRF 4.10 (b)).

Executive Order 11644, signed in 1972 by President Nixon, defines an ORV as “any motorized
vehicle designed for or capable of cross-country travel on or immediately over, land, water, sand,
snow, ice, marsh, swampland, or other natural terrain….”10 The purpose of Executive Order
11644 is to:

        “…establish policies and provide for procedures that will ensure that the use of off-road
        vehicles on public lands will be controlled and directed so as to protect the resources of
        those lands, to promote the safety of all users of those lands, and to minimize conflicts
        among the various uses of those lands.” (Section 1).

Executive Order 11644 states:

        “Each respective agency head shall develop and issue regulations and administrative
        instructions … to provide for administrative designation of the specific areas and trails on
        public lands on which the use of off-road vehicles may be permitted, and areas in which
        the use of off-road vehicles may not be permitted…. (Section 3(2)).

        [The] regulations shall direct that the designation of such areas and trails will be based
        upon the protection of the resources of the public lands, promotion of the safety of all
        users of those lands, and minimization of the conflicts among the various uses of those
        lands. The regulations shall further require that the designation of such areas and trails
        shall be in accordance with the following-- (1) Areas and trails shall be located to
        minimize damage to soil, watershed, vegetation, or other resources of the public lands.
        (2) Areas and trails shall be located to minimize harassment of wildlife or significant

10
 For several years, CAHA has prohibited personal watercraft, so their use will not be part of the
ORV management plan.


CAHA Negotiated Rulemaking Feasibility Report     9                                     April 4, 2006
        disruption of wildlife habitats. (3) Areas and trails shall be located to minimize conflicts
        between off-road vehicle use and other existing or proposed recreational uses of the same
        or neighboring public lands, and to ensure the compatibility of such uses with existing
        conditions in populated areas, taking into account noise and other factors. (4) Areas and
        trails shall not be located in officially designated Wilderness Areas or Primitive Areas.
        Areas and trails shall be located in areas of the National Park system, Natural Areas, or
        National Wildlife Refuges and Game Ranges only if the respective agency head
        determines that off-road vehicle use in such locations will not adversely affect their
        natural, aesthetic, or scenic values.

Additionally, Executive Order 11989, signed in 1977 by President Carter and amending
Executive Order 11644, requires that:

        “ ... the respective agency head shall, whenever he determines that the use of off-road
        vehicles will cause or is causing considerable adverse effects on the soil, vegetation,
        wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the
        public lands, immediately close such areas or trails to the type of off-road vehicles
        causing such effects, until such time as he determines that such adverse effects have been
        eliminated and that measures have been implemented to prevent future recurrence.…”

NPS in its vehicle and traffic safety regulations provides that:

        “…operating a motor vehicle is prohibited except on park roads, and parking areas and
        on routes designated for off-road motor vehicle use.” 36 C.F.R. § 4.10.

In addition, the agency head is authorized to close portions of public lands. Consistent with this
general authority, NPS Management Policies 2001 states, as to ORVs, “routes and areas may be
designated only in locations in which there will be no adverse impacts on the area’s natural,
cultural, scenic, and esthetic values, and in consideration of other visitor uses” (NPS
Management Policies 2001, 8.2.3.1).

In 1978 CAHA prepared a draft Interim ORV Management Plan as a basis for ORV regulation.
A regulation was never promulgated, however CAHA has used sections of this plan to guide
ORV management since 1978.

 Some people who favor ORV use on CAHA also cite an open letter to the people of the Outer
Banks dated October 27, 1952 from Conrad Wirth, then Director of NPS, and published in The
Coastland Times on October 31, 1952. They describe it as providing an important commitment
from the federal government about open access to the beach on the Outer Banks for all people,
whether they are local residents, or visitors from the outside; preservation of traditional uses
(hunting and commercial fishing); and the federal government’s activities on CAHA.

 Some people take a different interpretation from the letter, and they state that it makes clear that
access for all people, particularly those driving vehicles, is subject to regulation, and that the
enabling legislation protects only commercial, not recreational, fishing. They also state that the
letter made no commitment to permit recreational fishermen to use off-road vehicles, particularly



CAHA Negotiated Rulemaking Feasibility Report      10                                       April 4, 2006
without any limitation, pointing to the part on the letter in which Wirth states that it will be
necessary to establish regulations to manage certain aspects of use. Some noted that Wirth’s
letter cannot forever preempt the federal government from making changes in its regulatory
policy, as reflected by the adoption decades later of Executive Order 11644 and the regulation
embodied in 36 C.F.R. § 410.

Many also cite the enabling legislation CAHA enabling, which provides for village residents the
right to earn a livelihood through (commercial) fishing within CAHA.




CAHA Negotiated Rulemaking Feasibility Report   11                                     April 4, 2006
FINDINGS

This section summarizes the views of the interviewees conducted in April and May 2005 without
attribution by name or organization. This Findings section reflects what we heard from
interviewees and does not represent the views of the assessment team. We have not attempted to
develop “one view” of the situation, nor do we present this information as “facts.” Rather, the
findings are intended to reflect the range of views and concerns we heard in our interviews.
Please note that because this situation is dynamic, this is a summary of how the situation
appeared at the time the assessment was conducted. The role of the assessment team is to reflect
as accurately as possible the range of views identified during interviews. Our role is not to judge
the merits of arguments, ascertain the accuracy of statements, or verify “facts.”

SUMMARY OF KEY THEMES

The following brief summary of the key points we heard in our interviews touches on the themes
we heard most consistently and from a wide range of interviewees.

•   Most people believe that ORV use, other uses, and protected species should be able to co-
    exist on the beach, though not necessarily on the same stretch of beach at the same time (and,
    not surprisingly, they differed in how this might work).
•   There are concerns that protected species, as well as non-listed plants and animals, are being
    harmed due to unintentional or careless action by beach users and management action, and
    that wildlife species and plants are constantly at risk on the beach.
•   There are concerns that the beach is gradually being taken away from ORV users and that
    ORV use prohibitions will become permanent, with accompanying effects on economics and
    activities that people love.
•   There are likewise concerns that CAHA practices favor the interests of ORV users over other
    park users and resources.
•   Many people are concerned that there are inadequate opportunities for wilderness-based
    recreation and that conflicts between those using ORV for recreation and those pursuing
    other forms of recreation need to be addressed.
•   People want to avoid ad-hoc management of ORV use and to bring CAHA into compliance
    on ORV management through the certainty and predictability that a management plan and
    regulations will provide.
•   All interviewees expressed an interest in the idea of using a negotiated rulemaking process.
•   Many people believe the negotiated rulemaking process is the best way to address all of the
    needs and concerns.
•   There is a range of willingness to participate in a negotiated rulemaking process, from
    enthusiastic to skeptical but willing, depending on how the process is structured and whether
    groups will refrain from pursuing litigation, political influence and other means to influence
    the process.
•   There also is a range of views about the likelihood of success of a negotiated rulemaking
    process, from cautious optimism to skepticism about whether other stakeholders are willing
    to make compromises and find common ground.



CAHA Negotiated Rulemaking Feasibility Report   12                                    April 4, 2006
•   People need to understand and trust the information, science and other requirements
    justifying management decisions, including both biological and socio-economic impact data.
•   People are aware of the legal, political, financial, resource, and other pressures on NPS.
•   Many long-time residents have been frustrated and saddened by the present relationship
    between the community and NPS, want to improve it, and see the appointment of Mike
    Murray as permanent superintendent as a positive step.
•   People are passionate about the place where they live and about their beliefs that protecting
    environmental resources is crucial.

We have divided this section into 12 major subject areas that were consistently raised by the
stakeholders we interviewed. These are: the unique and changing Outer Banks culture, economic
impacts, park user conflicts, natural resources protection, ORV use and management, pressures
on CAHA, relationship between the NPS and local communities, CAHA leadership, enforcement
and staffing, approaches to managing ORV use, data and research needs, and process
recommendations. Note that for the sake of simplicity we have used the term “park user,” rather
than visitor or guest, to mean anyone other than NPS staff members who spends time on the
beach for any reason. Also, bear in mind that opinions and views expressed (whether
paraphrased, quoted, or noted) are those of interviewees, not of the assessment team.

1. UNIQUE AND CHANGING OUTER BANKS CULTURE
The Outer Banks has a unique culture and history, shaped by the unusual geographic formations
of the islands and their remote location. For some on these islands, driving on the beach has
been a way of life for generations. Residents are proud of the fishing culture that brought people
here and has sustained them over the years. They are accustomed to living in a beautiful place,
with beaches that are accessible to all. The beaches are responsible for originally drawing many
year-round residents to the area, as well as for bringing in the substantial number of tourists that
now sustain the local economies. All park users (residents and visitors alike) care about the
health and maintenance of the beaches.

Population and development pressures, as well as federal environmental laws enacted since the
1970s, have caused the local way of life to change. While the Outer Banks once seemed remote
and isolated, with a culture based primarily on commercial fishing, this has changed. Recent
visitors and second-home buyers are more affluent than their predecessors and have different
priorities and interests. Some long-time residents are upset because of the changes and
disappearance of the old culture due to development pressures, an influx of new homeowners,
and an increasingly narrow beach. This cultural shift shapes residents’ and visitors’ perspectives
of the ORV situation on CAHA.

The designation of CAHA as the first national seashore rather than as a national park is
considered very important by many residents. CAHA and the local communities are closely
integrated and intimately connected because of the narrow and elongated geography of the
barrier islands. The beach shifts from CAHA into the adjoining communities and back again in a
way that many describe as seamless. This close relationship between CAHA and the local
communities is considered unique by many. It was reflected in the provision regarding
commercial fishing in the original legislation authorizing creation of CAHA. Some note that



CAHA Negotiated Rulemaking Feasibility Report    13                                     April 4, 2006
there are other national seashores that have towns along their boundaries that rely on NPS visitor
use for income.

2. ECONOMIC IMPACTS
The economic impact of ORV use on the beach is a much-discussed topic. Some believe that the
positive economic impacts of regulating ORV use are underestimated. They note that a minority
of CAHA visitors drive on the beach, and that regulations affecting that number of people would
not significantly adversely affect the local economy. In addition, they believe that positive
economic benefits could result from such regulations because those interested in non-motorized
recreation would be more likely to visit CAHA if they could hike, fish, or photograph on the
beaches without the presence of ORVs. They cited examples in which ORV restrictions may
have benefited local economies by attracting visitors previously displaced by ORV use. They say
that, in their experience, only storm-related events, adverse weather, and bridge and road access
difficulties impact the local economy. In addition, they feel that the CAHA enabling legislation
provides opportunities to generate revenue through commercial fishing on the beach by local
residents, not that ORV use on the beach for recreational purposes was an intended or guaranteed
economic benefit of CAHA. Many also believe that regulating ORV use at a sustainable level is
a responsible economic action because it will permit constant and appropriate levels of ORV use
both for the resource and for driver enjoyment.

On the other hand, many people from a range of perspectives want the potential economic
impacts of ORV use to be considered during the development of an ORV management plan.
These people see calls to limit or prohibit ORV use on the beach as a significant economic threat
to local businesses because they believe the local economy is based primarily on industries
connected with use of CAHA and fishing and ORV use (from commercial fishing, to local hotels
and restaurants, to the many shops that supply tourists and locals with fishing and recreational
gear). They believe that when the area became a national seashore, the intent was to enable
residents to continue to make a living locally, and that fishing on the beach was guaranteed.
There is concern that limiting ORV use also will limit easy access to the beach. Some believe
that this could significantly reduce the number of people who choose to visit the area and
decrease the customer base for the many businesses on Hatteras and Ocracoke Islands and other
nearby communities. Although commercial fishing is decreasing, recreational fishing has
increased, and many advocate that the beach and fishery should and must be kept open for
recreational fishermen using ORVs.

3. PARK USER CONFLICTS
Conflicts between beach users and ORVs have increased and intensified due in part to rapid
population growth, increased development along the CAHA boundary, the increase in CAHA
visitation and the resulting increased use of the beach, and the narrowing of the beach itself. In
general, there are diverse uses on CAHA that may or may not be tied to ORV use on the beach.
In general, these activities fall into several broad types: (a) those who choose to or need to drive,
whether for fishing, getting to special places on the beach, or bringing their friends and families
with them, (b) those who choose not to use vehicles on the beach as they swim, surf, walk,
picnic, or photograph, and (c) those who both do not want to use an ORV on the beach and are
also there for a wilderness-type experience, and so want no ORVs and few other people nearby.
In narrow areas of the beach (where the beach is less than 150 or 100 feet wide) and along


CAHA Negotiated Rulemaking Feasibility Report    14                                      April 4, 2006
beaches with heavy use, conflicts between drivers and non-drivers arise. Depending on how
vehicles park, there are sometimes conflicts on the beach between ORV users. Similar conflicts
occur between ORV users and sunbathers, photographers, hikers, swimmers, walkers and
fishermen not using ORVs. A few interviewees described conflicts between people using the
beach in front of their villages and ORV users, citing safety concerns due to the close proximity
between ORVs and children. Some park users also described being intimidated or harassed by
ORV advocates. Most people expressed the desire to find ways to remedy these conflicts among
park user groups. Everyone expressed concern about the health of the local communities, the
beach itself, and the CAHA experience.

4. NATURAL RESOURCE PROTECTION
Almost everyone interviewed, if not everyone, considers protection of the natural resources of
CAHA to be important. Most people interviewed believe this can be done while providing for
some level of managed ORV use. Everyone understands and accepts that CAHA staff are
required by federal law to protect certain species at CAHA. Several people noted that NPS
responsibilities are broader than just protecting listed species, and include conservation of
unlisted plants and animals, including migrating and wintering shore birds, and protection of all
CAHA natural resources. Some say the cumulative impacts to CAHA natural resources have to
do with a range of causes, visitor use being only one among many. Wildlife attracts visitors and
the beach provides unique wildlife habitat for shore birds. Primitive wilderness areas, natural
viewscapes and soundscapes provide wilderness experiences for visitors. While everyone
recognized the importance of protecting wildlife species, they differed in how to provide that
protection, and offered a range of suggestions for managing the species while also taking other
park user groups into account.

ORV Users as Conservationists
Several interviewees stated that ORV users have acted as conservationists over the years. They
have protected turtles and nesting grounds. They teach children about ways to conserve beach
resources. They love the beach and want it to be available to all for years to come, and work to
protect the beach. In addition, several ORV groups have contributed actively to the beaches
through beach clean-ups, turtle monitoring, and the young ranger program. They would like to
continue helping with efforts to protect these species. They want regulations that will serve as a
tool for protecting a highly valued resource.

Others describe ORV use on CAHA having a detrimental impact on conservation efforts. They
describe ORV use causing damage to vegetation patterns, species, natural dune formation,
invertebrates, and causing sand compaction. Some of these noted that some ORV users have
acted to weaken the ESA and have intensely criticized those working to ensure ecosystem
conservation.

Closures
Closures of specific areas of CAHA to ORV or human use are put in place by CAHA staff for a
number of different reasons. They may be established to protect species or heavy pedestrian use
beaches, or due to narrowness of beach that makes it unsafe for ORV use.




CAHA Negotiated Rulemaking Feasibility Report   15                                     April 4, 2006
Some interviewees stated that actions taken to protect species to date have been inadequate.
They assert that there have been violations of the Endangered Species Act (ESA), which
provides Recovery Plan guidance that some believe should be strictly observed unless CAHA
has completed formal consultation with the USFWS. Some interviewees expressed concern that
summer ORV use greatly detracts from piping plover and other shorebird and colonial water bird
breeding, nesting and feeding areas. Some have noted that unfledged chicks and fledglings of
various shore birds have been run over and killed over the years, some in the same locations
every year. Some say that even if ESA-listed species themselves have not been killed, the
intensity of ORV use has degraded habitat and prevented these birds from nesting, fledging, and
thriving. They say that ORV use has also adversely affected migrating and wintering shorebirds.
These interviewees want broader closures to better protect species and habitat. Some also
declared that CAHA is out of compliance with the ESA and other federal laws and regulations in
terms of how they manage protected species.

Other interviewees stated that species protection has gone too far in past years. They say that
closures of the beach to ORV use around nesting grounds have been too extensive, and the NPS
is managing only to protect wildlife rather than to support the range of uses for which CAHA
was created and intended. They would like to see other techniques besides closures used to
protect these species. Many interviewees described a sense of loss as the NPS “takes” more and
more land at CAHA for plover and other species at the expense of human uses.

Ecosystem Requirements
Some interviewees want an ORV management plan to be based on and developed from the part
of CAHA’s mission directed towards maintaining natural resources and then expanded to include
recreational uses and the attendant impacts. Several people noted that CAHA is the only
National Park System unit that has the word “wilderness” in its authorizing legislation but has
never been studied for wilderness suitability. They would like a suitability study to be completed
that includes consideration of both critical habitat and the many human uses of CAHA. Some
interviewees noted that CAHA, as a unit of the NPS, is required to comply with a range of
legislation including the NPS Organic Act, the 1970 National Park System General Authorities
Act, as amended in 1978 (Redwood amendment) and other provisions which provide limitations
on recreational activities when they damage CAHA resources. These people also raised
concerns about the adequacy of protection for plants and animals in CAHA.

Dune Management
Although the question of dune management is outside the scope of the negotiated-rulemaking,
we mention it because many people believe there is a connection between dune management and
the availability of the beach for ORV use and other uses. The man-made dunes (berms), which
exist along CAHA, protect North Carolina state-maintained Route 12 and private homes and
businesses. Some told us that the NPS should be doing more to maintain the dunes for the
protection of the villages, while others said that letting overwash occur naturally is a geologically
healthier way to manage a barrier island, and will best provide habitat for wildlife species. We
heard a wide range of reasons for maintaining dunes and also for letting tidal and weather
conditions change them. NPS management policy on rebuilding dunes changed in the mid-
1970s. Current policy is to allow natural overwash processes to occur and not to rebuild dunes
changed by natural processes. The purpose of this is to prevent habitat loss from shoreline


CAHA Negotiated Rulemaking Feasibility Report    16                                     April 4, 2006
stabilization, as some noted that repairing man-made dunes exacerbates coastal erosion. This has
caused a change in the way the NPS approaches dune management. While in past years the NPS
actively repaired and maintained dunes (some of which were man-made) if storms and tides
altered the dunes, the NPS now does not repair the dunes, but may permit home or business
owners or state or local agencies to do so. This raises concerns for some about the protection
and viability of local property, beaches, and businesses if the dunes are allowed to change
significantly or be washed away. Woodland-type habitat that has, over the years, succeeded
open habitat westward of the man-made dunes may also be affected by ocean overwash. Finally,
some suggested the NPS provide access points to the sound-side so that people do not disturb the
dune habitat while accessing those beaches.

Predators
Some noted that pets and other “non-native predators,” such as feral cats, foxes and unleashed
dogs might be causing significant decline in species populations despite the best efforts of
CAHA staff. We heard that those fishing on CAHA sometimes feed predators or leave scraps of
fish on the beach, which artificially inflate predator numbers of gulls and raccoons, and
adversely affect shorebirds and water bird chicks.

Turtles
Many generally support current NPS management strategies for protecting turtle species at
CAHA. Others have concerns that turtle eggs, turtle nests, and newly hatched turtles are not
adequately protected, noting a rulemaking petition from 2004 regarding the existing turtle
management process. They stated that turtle monitoring should begin earlier in the spring, and
that ORV tracks may cover turtle tracks, making it difficult for resource managers to find turtle
nests.

5. ORV USE AND MANAGEMENT
Stakeholders hold a wide range of, and sometimes opposing, views on the current and desirable
amount of ORV use and the regulations to guide ORV use on CAHA beaches. Beach users want
solid, consistent, transparent management of ORV use of the beach. While some want ORV use
to be guided by a definitive, detailed, and high predictable management plan and regulations,
others note that such certainty may not be possible given the numerous legal responsibilities of
the NPS and the rapidly changing ecological conditions. Some stated that CAHA’s lack of a
basic ORV management regulation is negligent and a clear-cut violation of federal law.

Amount of ORV Use
Some people believe the current level of ORV use, with some restrictions of geographical areas
and times of year is adequate.11 Others told us that they oppose any management system based
on the carrying capacity of the beach. We heard a desire for a balance between personal safety,
the health of protected species, and human use of the beach. Some believe that ORVs and
nesting birds can co-exist within the level of use now permitted on CAHA, in part because the
waves wash away the ORV tracks. Others see ORV use as an issue of beach access in general


11
   Note: this information was gathered in early May 2005 before CAHA instituted the ORV escort program and
closures.


CAHA Negotiated Rulemaking Feasibility Report         17                                         April 4, 2006
and believe ORV use rights have diminished over time and the amount of beach where people
are allowed to drive should be increased.

Others believe ORV presence on the beach has increased due to (a) more vehicles, (b) smaller
beaches due to diminishing beach width, and (c) ORV restrictions in other places that have
redirected ORV users to CAHA. They argue that this increased concentration of ORV users is
causing erosion, habitat destruction, and a decrease in wildlife presence on CAHA. Several
people noted that there haven’t yet been any studies completed to determine the current rate and
impact of ORV use.

Some also believe that parts of the beach should be preserved from ORV use so that beach users
can experience a beach in natural “wilderness” type setting that they see as an important value
for a national park site. They noted that the increasing number of vehicles on the beach makes it
unlikely for a visitor who wants a wilderness type of experience to find a beach free of ORVs.
Some have safety concerns that lead them to want specific places on the beach where families
and ORVs are kept separate. A few people suggested that in certain areas ORV use should only
be permitted on the beach in cases of emergencies and for disabled access. We also heard from a
few people that a significant portion of residents want a year-round ban on ORV use. Still others
note that the protection of listed species and the conservation of natural resources have to take
priority in CAHA management, and that ORV use must be modified in some way if it is causing
resource damage.

The Need: Clear, Consistent Closure Guidelines
People who use CAHA want clear, consistent guidelines for ORV use on the beach. Many
interviewees indicated that current management of CAHA is not working for park users, and that
people are frustrated by perceived inconsistencies in implementing on-the-ground closures.
Some want the guidelines to be scientifically determined (data-driven), and many want them to
be transparently created and consistently enforced. Some people expressed concern that parts of
CAHA might be closed because of a lack of NPS personnel for monitoring and enforcement.

Others noted that closures might be based on a variety of reasons (habitat changes, buffer
distance guidelines, situation specific requirements). They described that closures must comply
with the law and be based upon the sound professional judgment of NPS staff. They elaborated
that NPS biologists must have the authority to close areas to ORV or pedestrian use as needed
prior to explaining their decisions to users.

Inconsistent Interim Plan Application
While the 1978 Interim Management Plan is being used, in part, to guide current management
decisions, it was never formally adopted. People said to us that NPS staff might not be applying
the plan consistently and in its entirety, which furthers distrust between some park users and the
NPS. In addition, some interviewees stated that the plan is inadequate for current conditions
because it was written at a time when there were many fewer ORVs on CAHA and beaches were
wider.




CAHA Negotiated Rulemaking Feasibility Report   18                                    April 4, 2006
The Desire for Clear Closure Demarcations
Many park users stated that they frequently do not understand why certain management actions
are being taken. Others state that they know that CAHA staff can’t explain every closure in
detail. There are many reasons for closures under current management, including public safety
and species protection. The range of regulations protecting different species is especially
confusing to some. Some people wonder why the NPS appears to be protecting American
oystercatchers in the same way they protect ESA-listed species. Others would like to better
understand the ESA requirements. Still others think they understand the requirements and are
concerned that the NPS is not meeting them. They want management decisions about
determining habitat to be based on the best available science. Finally, we heard a range of
particular concerns about unique closure areas and questions about why certain areas were
closed, including Bodie Island and the south side of Ocracoke.

The Challenge of Re-Opening Closures
There is an ongoing fear held by some park users that the NPS will keep enlarging closures until
there is no beach left to walk or drive on. Though there has not been an effort by the NPS to
completely close CAHA to ORVs, this worry has been fueling many of the actions of those
seeking to protect beach access. Every time there is a temporary closure, there is a perception
that it could be the beginning of a permanent closure. Many ORV users describe the uphill battle
to reopen areas that have been closed. Some noted that if the NPS re-opened closed areas as
soon as it was appropriate to do so, this might reduce worry or fears about closures. Several
people want criteria for reopening closures that can be applied systematically, rather than on a
case-by-case basis.

CAHA representatives have expressed to the assessment team recognition that ORV use in
CAHA is in need of regulation, and that there is no intention by the NPS to close the entire
seashore to ORV use.

Some believe that CAHA, under political pressure, is slow to close areas that ought to be closed
and may be re-opening closures too early without giving birds a chance to re-nest after chick or
egg loss. They are concerned about the effect of such management practices on protected
species.

Wildlife Preserve or ORV Park
Some people are concerned that the NPS seems to be managing CAHA, as a wildlife preserve,
rather than for recreational use. It appears to them that management has gradually shifted over
the years to be more and more wildlife-focused. They perceive that the NPS has become
interested in preserving and protecting natural resources, and increasingly less interested in
preserving the cultural and human use aspects of CAHA.

Other people are concerned that the NPS seems to be managing CAHA, a national seashore
which was intended to preserve “primitive wilderness,” as an ORV park, rather than for resource
protection as required by the NPS Organic Act and other statutes. They describe management
practices that have shifted over the past few years to be more ORV-use focused. They perceive
that CAHA has become interested in providing for ORV-based recreational access and
increasingly less interested in providing for pedestrians and beach-goers who don’t fish, nesting


CAHA Negotiated Rulemaking Feasibility Report   19                                    April 4, 2006
birds, turtles and indigenous plants. Others, looking for a natural beach experience at this
national seashore, are disappointed in the extensive amount of ORV use. They want CAHA
managed for a full range of uses in a way that is compatible with resource protection.

Access for People with Disabilities
It was noted that ORV access could also mean handicapped access to the beach. Some people
we spoke with noted that allowing ORV access for people with disabilities might be dealt with
separately from general ORV access in management plan development. They want to
distinguish between ORV access for seniors, disabled, or emergency vehicles and ORV access
for recreational uses.

Other Concerns
While many people are comfortable with turtle closures, some of these are uncomfortable with
closures of “potential habitat.” Others describe long-standing management standards for busy
beaches that indicate that nesting areas should be closed before nests are laid to prevent
disruption of territorial establishment and courtship behaviors. Some of these believe that the
ORV corridors allowed in front of closures are damaging to the successful nesting of protected
species. They are uncomfortable with the lack of closures of “potential habitat” for feeding,
breeding and nesting prior to the beginning of bird breeding season in mid-March. Closures that
stretch all the way down to the water are a concern for some because they completely prevent
passages, effectively closing down a portion of the beach to ORV users and pedestrians, and
possibly creating a safety hazard for drivers who cannot pass. Others note that such closures
protect shorebird-feeding habitats and provide necessary buffers for nesting birds and unfledged
chicks.

6. PRESSURES ON CAHA
People recognize that CAHA is operating under many pressures. Most people describe the NPS
as doing its best under myriad demands. Some see the NPS as doing too much to protect species
(because they want to or because they must under federal regulations), and others see it as
making ORV considerations a priority in management decisions because of local interests and/or
political pressure.

Using all available means, including pressuring the NPS politically or legally, is seen by many
(across interest groups) as a legitimate way to accomplish objectives. Others see these actions as
a last resort.

The different “pressures on CAHA” include:

Funding Pressure
We heard that a significant funding problem has made it difficult for the NPS to adequately meet
its mandate. People said that CAHA seems under-staffed, in law enforcement, resource
monitoring, and education. This contributes to tensions around issues of resource protection,
beach use, enforcement of regulations, and the education of the public about CAHA resources
and regulations.




CAHA Negotiated Rulemaking Feasibility Report   20                                    April 4, 2006
Legal Pressure
Some consider the threat of litigation and involvement by advocates for environmental
conservation as a primary reason for increasing nesting area closures. Some see the NPS as
taking management action only when threatened with litigation, and believe that some of the
CAHA staff responsible for resource protection use these threats to favor pro-species protection
rather than multiple use. Others noted that representatives from ORV organizations have
threatened CAHA with litigation over bird closures, and that ORV advocate groups recently
completed legal action against the federal government over piping plover critical habitat
designation at CAHA. Some argue that litigation is used only as a last resort, and sometimes the
only way to get CAHA to marshal the resources to take appropriate action. Others see it used
too early and too often, decreasing CAHA management effectiveness by depleting CAHA
personnel and financial resources.

Political Pressure
Political pressure from outside CAHA by ORV user advocates was cited as the likely cause of
various NPS actions, from lack or delay of beach closures to premature openings, to personnel
changes. Several people believe that this pressure has influenced CAHA management to less
strictly follow the guidelines for species protection.

Pressure in the Field
Interviewees described that different park users have been intimidated on the beach by other park
users, and that CAHA staff have intimidated, and have been intimidated by, various park users.
We heard that CAHA management has not responded strongly or appropriately to such actions.

7. RELATIONSHIP BETWEEN NPS AND LOCAL COMMUNITIES
There is a wide range of perspectives on the relationship between NPS and people on the Outer
Banks. We heard many positive comments such as: CAHA staff members work hard; committed
rangers do their utmost to fill myriad roles and to protect a range of types of resources and uses;
and rangers return phone calls promptly and managers and superintendents strive to do their best
work. People respect the CAHA staff for working under the many pressures described above.
People perceive CAHA staff as highly committed to their jobs and passionate about what they
do. Some recognize that they serve a national seashore and are responsible to national
constituencies and guided by national regulations. Other users would like CAHA staff to
respond more directly to local needs and concerns.

Yet many people interviewed believe the relationship between the CAHA and local residents has
significantly deteriorated. People representing many different interests would like CAHA staff
to be more friendly with and helpful to park users. They want the NPS to make relationship-
building a priority. Local residents want rangers to be a resource for people using CAHA and for
them to provide outreach to park users. People want the NPS to act as a good neighbor and to
assist the local community in times of crisis.

While some people trust CAHA staff and see that they are operating in a situation where no
matter what they do some park users will disagree with their choices, others distrust the CAHA
staff. Some local residents feel they have been betrayed and ignored as historical uses become
more restricted, and describe times when CAHA staff have solicited input from people and then


CAHA Negotiated Rulemaking Feasibility Report   21                                    April 4, 2006
not used it. Oregon Inlet was cited as an example in which the NPS gathered input from the
public and then did not make any decisions based on that input. Many people are skeptical that
the NPS will listen to their input regarding developing a proposed management plan on ORV
use. Most people want the NPS to be forthcoming with information in a straightforward way in
order to rebuild trust.

Some local residents also are concerned about the NPS citing events dating as far back as the
formation of CAHA. When CAHA was established, one of the primary ways to traverse the
Outer Banks on land was to use ORVs on the beach and on inter-dunal areas. ORV use on the
beach was due largely to a lack of paved roads. Many local residents believe they were assured
that traditional and commercial uses of the beach could continue. Some believe that Congress
and the federal government guaranteed local people the right to make a living on the beach,
whether through commercial fishing (the greatest source of local income at the time) or tourism
(the source of income today), and CAHA would be managed for recreational uses. Many federal
environmental laws that apply today to CAHA were created after CAHA was already established
(the NPS Organic Act of 1916 and the Migratory Bird Treaty Act of 1918 being notable
exceptions), and while people understand that NPS staff have to obey those more recent laws,
some believe these laws conflict with the perceived “guarantee” of continuing traditional and
recreational uses on the beach.

Others interviewed noted the enabling legislation contains no “guarantee or promise” about ORV
use in CAHA and mentions only commercial fishing as a permitted commercial activity. They
stated that while legal residents have the right to earn a livelihood within the boundaries of
CAHA, this right is subject to compliance with all applicable legal requirements, including
CAHA’s management regulations.

Some interviewees stated that community members should take some responsibility for the
relationship between them and CAHA staff. The described community members who have been
hostile toward CAHA staff and intolerant of NPS actions, and said they think that community
members should make an effort to improve relations if they hope to see a similar effort made by
the NPS.

Relationships and Communication in CAHA
Most people describe the communications between the NPS and local communities as strained
and inadequate over the years, particularly in the last several years. We heard of actions by local
community members and CAHA staff that contributed to these strained relations, including
uncivil and disrespectful behavior in community meetings, a lack of transparency on
management actions, and negative and threatening comments on websites.

Others describe CAHA staff as providing many opportunities for input by interested parties in
the form of public meetings or opportunities for submitting comments, and people not taking
advantage of those opportunities by not showing up or not submitting comments. The primary
concern we heard is that people wish there was more NPS presence on the ground.




CAHA Negotiated Rulemaking Feasibility Report   22                                     April 4, 2006
Casual Communication
Many local residents also would like CAHA staff to significantly increase informal interactions
with people in the communities. More than a decade ago, CAHA staff regularly visited
businesses and homeowners. Many see this as done far less frequently, if at all, today. By being
engaged on a regular basis, it will be easier for the NPS to share what is happening on the ground
and to provide more effective information to the community about CAHA. It was noted also that
such an effort can take limited staff time from competing resource protection tasks.

Civility
We heard that there has been a breakdown in civility and that people want better opportunities to
talk to each other and move forward. We heard descriptions from a range of interviewees about
their disappointment in uncivil and disparaging behavior (e.g. name calling, personal attacks,
etc.) between park users as well as between park users and staff.

Transparency
Many people feel that decisions made by CAHA staff have not been transparent. Some attribute
what appears to be “ad hoc” management to changing Superintendents, poor communication
skills, and the shear geographic size of CAHA. Others argue hard that management decisions
require that CAHA staff be flexible enough to make site-specific decisions. People expressed
the importance of being included in, rather than surprised by, changes to management of CAHA.
Some suggested that if they are educated and informed about what decisions are being made and
why, they will be much less likely to be upset and might be supportive. People want to know
why the NPS is making certain decisions and what the process is for making decisions before the
decisions are implemented. People have been frustrated in the past when such information has
not been provided.

Distinguishing Types of Closures
Many park users described having difficulty distinguishing between different types of closures
(whether for human safety or species protection). They would like the NPS to label and make
distinct the type of closure as they manage the land. Some described cases in which there may
be many reasons for a closure, or in which the reason for a closure may change over time,
explaining the complexity of clear labeling. Some would like to see clear communication from
the NPS on sensitive areas, piping plovers, clear rerouting of vehicle traffic, the ESA and other
important issues. They want improved frequency, consistency, and quality in communications
from the NPS regarding the rules, types of birds, and closures. Others feel that if the NPS works
hard to communicate and be civil, then park users also need to be more civil to CAHA staff.

Bureaucratic Requirements
Given staffing levels and procedural requirements that may delay responses to citizen comments
and questions, we heard a range of perspectives about response times. Some describe CAHA
staff responding in a prompt manner to citizen requests, while according to others, the NPS has
sometimes been slow to respond to citizen comments and questions. They attribute this response
time to bureaucratic requirements. They would like to see less bureaucracy and quicker
responses from the NPS.



CAHA Negotiated Rulemaking Feasibility Report   23                                   April 4, 2006
Printed Material
Finally, people would like CAHA handouts on ORV regulations to be kept current, adequately
distributed and contain complete information. Several noted that they have not seen a serious
attempt by CAHA to educate or inform ORV users of the rules, and that the outdated documents
are an indication of this.

8. CAHA LEADERSHIP
For many, the NPS-community relationship depends largely on the superintendent. They said
frequent turnover of CAHA superintendents has shaped public views of the NPS. Interviewees
said that the lack of consistent NPS leadership has made it difficult for CAHA staff and some
local residents to develop trusting relationships. Some local people also believe that CAHA
management is not committed to being part of the community in recent years. Many people
perceive the NPS as turning inward and managing based on what they can legally accomplish
rather than working for and sharing with the local communities. Some noted that each of the last
several Superintendents was sent for a specific purpose (i.e., moving the lighthouse or
implementing the Wright Brothers centennial) rather than for the broad, diverse management of a
complex seashore.

We also heard concerns that CAHA staff and rangers are not following the Superintendent’s
guidance about on-the-ground management actions, and that this practice undermines the
effectiveness of any protocol or policy. Others believe that CAHA employees in the field follow
superintendent and other high-level NPS managers’ directions.

We heard that people would prefer that the person serving as superintendent remain in that
position for more than a year or two to have time and an incentive to learn about the place,
community, issues, and local flavor. The superintendent should have a good understanding of
policy and law, the capacity to deal with public pressure, the willingness to understand local
people and talk with them, and the desire to reach out to the local community. We heard that a
permanent superintendent (as opposed to a succession of acting superintendents) for CAHA
would greatly enhance the relationship between the NPS and Outer Banks residents.

9. ENFORCEMENT AND STAFFING
Many people we spoke with described CAHA staffing and enforcement challenges relating to
ORV and other types of use.

We heard from many stakeholders that existing regulations are sufficient (though several said
speed limits are too high). For these people, the primary challenge on the beach today is
inadequate enforcement.

Some stakeholders say there is limited (or almost no) ranger or law enforcement presence during
the shoulder season and during certain times of the day. People would like more NPS presence
on the beach to prevent irresponsible use. People also want greater enforcement of existing ORV
use regulations, including no ORV use through bird areas or dunes, and no speeding. They think
that greater visibility could easily decrease irresponsible behavior. Other people are concerned



CAHA Negotiated Rulemaking Feasibility Report   24                                  April 4, 2006
that the NPS seems to be setting out large closures because they have insufficient manpower to
implement and monitor other enforcement mechanisms. Yet others noted that human escorts in
2005 were very human resource intensive and very expensive.

Many people said all beach users (with the possible exception of renegade or irresponsible
drivers) want to be good stewards and help with enforcement. However, some people believe
that if they cooperate with enforcement efforts this will result in more extensive closures than are
necessary. Enforcement is needed for more than just ORV use (also for dogs, firework use, and
destructive driving.) In addition, more education staff would be helpful in increasing public
understanding of CAHA resources management and ORV regulations and use.

Interviewees noted the following points about enforcement challenges and irresponsible use on
CAHA. ORVs have been seen in restricted areas, driving over fences and nests. People have
witnessed speeding, destructive driving, and reckless or drunken driving on the beach. Some
suggested that such drivers may see CAHA as an ‘unenforceable zone’ where they can do what
they want. We heard that some members of ORV user groups do tell people if they are using the
beach irresponsibly, and that the vast majority of people driving on the beach do so
appropriately. Trouble-makers are often teen-agers or young adults. When people use the beach
irresponsibly, it can set wildlife breeding back for weeks and can lead to failed bird mating and
therefore lengthier beach closures. We heard that CAHA lacks enforcement personnel to stop
ORVs from breaking the rules on the beach, and to get an accurate count of violations.

10. APPROACHES TO MANAGING ORV USE
There are a range of views on the many possible systems for managing ORV use. These systems
could manage ORV use dependent on species life cycles, archaeological concerns if appropriate,
or other recreational uses. They could include speed limits, clearly designated routes, limitations
of time of day or time of year, escorts to certain points, and training requirements. They could
designate routes and close off certain areas. Some noted a desire to have any approaches
adopted be equitable among all groups, and others noted that some sort of management system is
the only way to educate ORV users of beach resources and policies. Comparing these views is
challenging because the terms, such as passes and permits, have different meanings to (and cause
different reactions from) different people.

The following are two examples (not suggestions) for managing ORV use from the interviews.
There are certainly other possible approaches that could be developed during the NEPA scoping
process or the regulatory negotiation. For convenience we have labeled them as “Tracking ORV
Use” and “Limiting ORV Capacity.”12 The enforcement and staffing issues listed above (namely
lack of personnel) may pose problems in effectively implementing any approach for managing
ORV use. Please do note that one of the potential benefits of a collaborative approach is that by
bringing diverse, thoughtful people together, new ideas, options, and solutions can emerge out of
dialogue.
12
  We recognize the enforcement and staffing issues listed above (namely lack of personnel) may pose difficulties in
effectively implementing any approach for managing ORV use. We also note that one potential benefit of a
collaborative approach is that new ideas, options, and solutions can emerge out of dialogue among a diverse,
thoughtful group of people.




CAHA Negotiated Rulemaking Feasibility Report           25                                           April 4, 2006
Tracking ORV Use
Under this approach, ORV users would register their vehicles, perhaps pay a fee, and get a
sticker or other form of proof that they may drive on the beach. This would enable everyone to
know what ORVs are permitted on the beach. Vehicle owners could be required to sign a
statement that they understand and will follow NPS regulations and could be provided with
information on various aspects of ORV regulations and use on CAHA.

Potential Benefits:
   • Encourages appropriate use of the beach. Those caught driving irresponsibly could suffer
       strict violation penalties such as having their permission to drive on the beach revoked or
       paying substantial fines.
   • Could give those who use CAHA responsibly a high quality experience by reducing the
       number of irresponsible drivers.
   • Provides the NPS with a structure for encouraging good behavior.
   • Encourages ORV drivers to police themselves.
   • Might reduce irresponsible behavior and “joyriding” in part through peer pressure.
   • Enables park users of all kinds to report bad behavior to rangers.
   • Could help fund enforcement efforts.
   • Would ensure that all ORV users are aware of their rights and responsibilities.
   • Strongly supported by some.

Concerns:
   • Might have a negative impact on local economies.
   • Fees could mean that certain park users were paying much more than other park users.
   • CAHA would need increased funding to support staffing, supplies, and infrastructure
      needed to support an ORV tracking operation.
   • “Permits” for accessing the beach in an ORV are strongly disliked by some.

Limiting the Number of ORVs on the Beach
Under this approach, ORV use would be limited to a fixed number of vehicles on CAHA per
day, week or year. While some of our interviewees supported the idea of fees, permits, and
limitations, many others are opposed to setting limits on the number of vehicles on CAHA in a
management plan.

Potential Benefits:
   • Similar benefits as described for ”Tracking ORV Use.”
   • Might increase protection for protected species.
   • Might provide for an enhanced experience for ORV drivers and fishermen.
   • Could be scientifically based (i.e. carrying capacity).
   • Might increase beach user satisfaction due to maintenance of appropriate level of ORV
       use.
   • Might stimulate the NPS to provide a variety of means to access the beach so that those
       who don’t have an ORV have improved access, thus giving visitors more choices on how
       to access the beach.




CAHA Negotiated Rulemaking Feasibility Report   26                                   April 4, 2006
Concerns:
   • Considered by some to be onerous for all ORV users.
   • Possibly damaging to commercial fishermen’s ability to work.
   • Possibly damaging to local businesses.
   • ORVs might have to line up and wait to access any part of CAHA.
   • Might result in ramp closures or reduced access points to enable the NPS to monitor use.
   • Impinges on right of access to the beach perceived by some to be in CAHA’s authorizing
      legislation.
   • The scientific basis for determining the vehicle capacity on the beach is questionable and
      may be nonexistent.
   • CAHA would need additional funding for staffing, supplies and infrastructure needed to
      support an ORV limit program.

11. DATA AND RESEARCH NEEDS
We heard from some that there is enough information known already to make informed
management decisions. Others told us that additional data might be helpful. Several people
noted that the techniques used for gathering data should be unbiased, perhaps carried out under
review by a wide range of stakeholders. Several others stated that the biological needs of
protected species must serve as a foundation for management decisions.

The following data, information and potential research questions were identified as important in
the development of an ORV management plan. Some people said there are gaps in the current
data needed to make informed decisions about beach management and that resource protection
measures should be science-based. We heard that using broadly accepted and supported data in a
negotiated rulemaking process could increase the process’ likelihood for success and political
support.

    •   Beach – percentage of the beach closed and open for ORV use, importance of closures
        on habitat protection, implications of closures for fishermen, surveys of those who wish
        to engage in non-motorized recreational activities, number of parking spaces available
    •   Economics - effect of resource protection on the economy, socioeconomic data, effect of
        closures on businesses near the closures, economic impact of ORV management on other
        national seashores like Cape Cod National Seashore
    •   ESA – Piping Plover Recovery Plan
    •   Human – number of visitors on the beach each season, number of visitors to other parts
        of CAHA, literature on human disturbance effect on species
    •   Legal – relevant federal laws and regulations, formal purpose of the CAHA, provision
        for primitive wilderness in enabling legislation
    •   ORVs – number of ORVs on the beach daily and yearly, number of ORV users, ramp
        usage, impact on habitat and erosion, ORV complaint statistics, ORV accident statistics
    •   United States Geological Society – review of USGS work and protocols supporting the
        interim species protection plan.
    •   Species – bird and turtle population counts, identification of critical habitat that needs to
        be protected, mapping land changes, information about piping plover and other protected
        species specific to the CAHA region, shorebird, water-bird and turtle behavior and



CAHA Negotiated Rulemaking Feasibility Report    27                                     April 4, 2006
         management (e.g. site fidelity, sensitivity to disturbances, breeding biology), winter and
         migration ecology, beach vegetation.

12. PROCESS SUGGESTIONS
During the interviews, a range of ideas was presented on how best to develop the ORV
management plan for CAHA. Some pertained to the negotiated rulemaking process, while others
can be applied whether or not such a formal process goes forward.

Almost all people we interviewed stated that a consensus process may be a good idea in this
situation, and that it can be successful if everyone at the table is willing to accommodate a range
of views and interests. Consensus may be possible if the final agreement is reasonable, rational
and balances the needs of the protected species and a variety of human uses. As one person said
“if a reasonable, transparent process for developing a management plan were put into place
based on the best science, and all parties participated in its development, then it would be
possible for all park user groups and species to co-exist.”

We heard that success could be achieved (a) if stakeholders are part of the process, (b) if all
parties behave honorably at the table, and (c) if the participants believe their and others’
perspective are worthy of attention and consideration. Many interviewees noted that a consensus
process could build ownership of a resulting management plan that will create the conditions for
success and peace rather than ongoing conflict in the coming years.

Others are concerned about possible implications if the negotiated rulemaking process turned out
to be unsuccessful. These issues are very contentious, people are deeply divided, and the
situation and relationships could worsen if the process does not work.

Possible advantages of a collaborative process include: the opportunity for stakeholders to better
understand the needs and concerns of other groups; the possibility of coming to an agreement
that is more responsive to everybody’s needs than a NPS-prepared management plan; and that
good facilitators and a fair process will be a step towards moderation and away from the hard
feelings and contention of the past few years.

Several people described the selection of the neutral assessment team as the first step toward
collaboration among stakeholder groups. They described a tendency among those selecting the
neutral team to reach out and find reasonable solutions. Even though the participants represented
distinct positions, they came to unanimous agreement in selecting the team, demonstrating a
willingness to move forward and find resolution to ongoing conflicts.

The following suggestions for conducting a negotiated rulemaking process were offered by
interviewees:

     •   Participants need to commit to come to the table with any concerns prior to taking
         further legal or political action to find long-term solutions.
     •   The NPS must be transparent about its process and commit to work with the group, and
         should not go forward with its own proposed regulation if the group reaches consensus
         on a proposed regulation. The NPS must dispel the impression that it is developing its


CAHA Negotiated Rulemaking Feasibility Report    28                                     April 4, 2006
         own plan outside the NEPA and negotiated rulemaking process and should state
         publicly its commitment to the concurrent and integrated regulatory negotiation and
         NEPA processes and explain these processes.
     •   The proposed regulation must comply with all laws and represent the concerns of all
         park users, including those who want to see it preserved for future generations and those
         that want to ensure continued ORV use.
     •   Ground rules will have to be well established, followed, and enforced (examples of
         potential ground rules include no talking while someone else is talking; no talking down
         to each other, and no personal attacks or harassment by organizational representatives or
         their constituents).
     •   The interests, and the number of national and local groups, have to be balanced at the
         negotiating table.
     •   Meetings should occur on the Outer Banks.
     •   Everyone must understand that motorized access is a traditional, historical, and
         necessary method of getting to CAHA beaches.
     •   The conversation must start from a clean slate, not from the 1978 Interim Plan.
     •   Park users have to be engaged in shaping the regulations to prevent them from resorting
         to legal or political means to influence the process and to ensure support for the
         regulations.
     •   Local users must accept that national groups can legitimately represent users who are
         not part of the local community.
     •   Local groups should have training on the regulations and laws prior to or as part of the
         process to enable them to work more effectively with national groups, who are
         perceived as being better funded, more experienced, and less attuned to local conditions.
     •   National groups should have training on the local culture, economy, and on-going local
         activities to enable them to work more effectively with local groups, who are perceived
         as more attuned to local conditions and directly economically affected by Park
         decisions.
     •   Stakeholders need to learn about and understand each others’ organizational missions
         and purposes.




CAHA Negotiated Rulemaking Feasibility Report   29                                   April 4, 2006
REVIEW AND ANALYSIS OF THE REQUIREMENTS FOR A
REGULATORY NEGOTIATION

Based on our interviews and our analysis of the criteria in the federal Negotiated Rulemaking
Act of 1990 (for more information, see http://www.archives.gov/federal_register/public_laws/
negotiated_rulemaking_act/561.html), we believe a regulatory negotiation for the CAHA
situation will satisfy the requirements of the Negotiated Rulemaking Act, as more fully described
below. Those requirements are:

        1)      there is a need for the rule;
        2)      there are a limited number of identifiable interests that will be significantly
                affected by the rule;
        3)      there is a reasonable likelihood that a committee can be convened with a balanced
                representation of persons who: (a) can adequately represent the identified
                interests; and (b) are willing to negotiate in good faith to reach a consensus on the
                final rule;
        4)      there is a reasonable likelihood that a committee will reach a consensus on the
                proposed rule within a fixed period of time;
        5)      the negotiated rulemaking procedure will not unreasonably delay the notice of
                proposed rulemaking and the issuance of the final rule;
        6)      the agency has adequate resources and is willing to commit such resources,
                including technical assistance, to the committee; and
        7)      the NPS, to the maximum extent possible consistent with the legal obligations of
                the agency, will use the consensus of the committee with respect to the proposed
                rule as the basis for the rule proposed by the agency for notice and comment.


1.      NEED FOR A RULE
NPS has stated that it intends to proceed with ORV management planning and rulemaking for
CAHA, whatever the process used. In addition, there is a petition requesting that NPS do so.
And, in our interviews, most interviewees stated that NPS should proceed with some kind of
rulemaking in order to meet laws and regulations and bring greater certainty to the management
of ORV use on CAHA. Almost all parties we spoke with believe that a rule is essential for the
Park to meet its own regulatory and policy directives, as well as to provide greater certainty and
stability for ongoing management. Thus, there is clearly a need for this regulation.


2.      LIMITED NUMBER OF IDENTIFIABLE INTERESTS SIGNIFICANTLY AFFECTED
BY THE RULE
We believe this criterion involves two key issues, first, the subject matter must be sufficiently
focused, and second, there should be identifiable interests who can organize and discuss that
subject.




CAHA Negotiated Rulemaking Feasibility Report    30                                      April 4, 2006
ORV use on the beach raises a host of issues, from protecting endangered and threatened species
to balancing multiple uses and minimizing conflicts among park users to the quality of life for
year-round residents to the overall quality of visitors’ experience. However, the focus of the
proposed regulatory negotiation would be on ORV management planning and development of
implementing regulations. This would be a sufficiently narrow focus to scope, frame, and
undertake dialogue and would have specific products as its outcome: a management plan and
regulations for ORV access and use of the beach.

For this focused subject, there are a limited number of identifiable interests who likely would be
significantly affected by the proposed regulation. These interests are identified further in our
findings, and include: federal, state, and county government interests; local civic and
neighborhood association interests; environmental and conservation interests; various park user
interests, including ORV, fishing, water sports, walking, bird watching, and other general uses;
and local visitor, business, and tourism interests.


3.       REASONABLE LIKELIHOOD A BALANCED, REPRESENTATIVE COMMITTEE
CAN BE CONVENED
There is a reasonable likelihood that a committee can be convened with a balanced
representation of persons who can adequately represent the interests identified in the Findings
section and are willing to negotiate in good faith to reach a consensus on the proposed
regulation.

As outlined elsewhere in our report, we have identified well-organized, capable organizations
representing the range of interests outlined above. These include government agencies, civic and
neighborhood associations, a number of environmental advocacy groups, a number of park user
advocacy groups representing fishermen, drivers, water users, and other uses, and both local
business associations and specific local businesses. 13

We do highlight three particular challenges to this criteria we identified in our pre-convening
process.

     •   We found it difficult to identify specific representatives of the Park’s general non-local
         visiting public. While various stakeholder groups and their representatives clearly
         represent segments of the general visiting Public, there is no single organized group that
         claims to or is able to represent this general category. This is not surprising and is not
         unique to Cape Hatteras. The general visiting public may not join local groups, may visit
         infrequently, and do not generally focus on Park issues through participation in any
         group. We do find that the Visitor’s Bureau provides, at least in part, a means to
         represent this category, as do other groups representing a range of Park user interests.
         Furthermore, public comment periods during the Committee process as well as the

13
    In our draft list of recommended Committee members we included the National Park Conservation Association
(NPCA). NPCA, and two other organizations that did not apply for seats on the Committee, filed a lawsuit against
NPS concerning ORV use. Some stakeholder groups have intervened in the lawsuit. NPCA subsequently withdrew
its request for a seat on the Committee.


CAHA Negotiated Rulemaking Feasibility Report          31                                         April 4, 2006
         broader National Environmental Protection Act (NEPA) public involvement process will
         at least provide additional opportunities for the general non-local visiting public to
         participate.

     •   Through our pre-convening and its public comment period, we found it difficult to
         establish a “balance” of representation in the eyes of diverse stakeholders. The public
         comments on the preliminary list of proposed Committee members demonstrate that there
         is not broad agreement on the exact make-up and balance of the Committee. We do
         believe that the requirements of FACA in terms of general balance on this Committee
         ultimately can be met. FACA’s requirements are general and broad and there is no
         clearly defined legal test established in the law or in case law, as we understand it, for
         precisely determining what “balance” entails. However, given the public comments we
         received on the draft make-up of Committee members, it is clear to us that at least the
         perception of balance in the eyes of all stakeholders will be difficult to meet and it is
         likely that one group or another will believe interests are underrepresented as more fully
         described below. We do believe that by operating by consensus (in terms of both process
         and decisionmaking) all interests will have a voice on the Committee, be able to raise
         concerns, issues, and ideas, and can and will have a say in whether consensus can or
         cannot be achieved.

     •   Thirdly, we find that given the strong interest in the issue from a range of groups, the
         Committee cannot be convened and be representative with only twenty-five members.
         The Negotiated Rulemaking Act limits membership on a committee to 25 members,
         unless the agency head determines that a greater number of members is necessary for the
         functioning of the committee or to achieve balanced membership. Thus, we recommend
         that the National Park Service make this determination and expand the size of the
         Committee. We explain the details of this issue later in the Report.


4.       REASONABLE LIKELIHOOD THE COMMITTEE WILL REACH CONSENSUS
WITHIN A FIXED PERIOD OF TIME
From our interviews, we have concluded that there are a number of shared interests and
incentives to negotiate. There are also uncertain alternative outcomes if there is not a negotiation
process. These suggest that reaching consensus on many, if not all, issues is possible within a
fixed time.

First, almost everyone shares a strong interest in bringing certainty and clarity to CAHA’s ORV
use management. The ad hoc and interim approach over the last several years prior to the
appointment of a permanent superintendent led to conflict, confusion, miscommunication, and
inconsistency that all stakeholders wish to change. Furthermore, from our interviews we learned
that almost all local stakeholders over the years have been saddened and frustrated by the
relationship between the NPS and its neighbors. Almost all interviewees want to improve the
working relationship with the NPS and see the negotiated rulemaking as one way to do so.

Second, there are certainly advocates for ORV use who would prefer unfettered access and
advocates for the environment and others who would prefer the elimination of ORV use on


CAHA Negotiated Rulemaking Feasibility Report    32                                    April 4, 2006
CAHA beaches all together. Nevertheless, both of these opposing views – which mark the ends
of the spectrum of views on ORV use – recognize that the NPS must establish a management
plan and regulations for ORV use, that NPS must comply with the ESA and other statutes, and
that ORV use on CAHA can and will continue.

Third, different stakeholders have enough uncertainty about their abilities to influence the
outcome of a rule-making process to develop the management plan outside of a negotiated
rulemaking so as to make such a dialogue feasible. For some stakeholders, limited national and
state political influence suggest that the regulatory negotiation can provide a more direct,
effective means to influence the NPS. For others, uncertainty in the courts and the possibility
that the courts will dictate management of ORV use in CAHA suggest that a regulatory
negotiation may provide a direct, effective means to shape the management of ORV use in
CAHA.

Fourth, there appears to be a broader, more nuanced, diverse set of views on the issue of ORV
use on CAHA than may be apparent at this time in public discourse, media reports, and general
public conversation. This suggests that there are opportunities to build understanding, more
constructively define the problem, and generate a range of diverse options that might solve the
problems and adequately address stakeholders’ concerns. However, some people with views that
differ from those of the people advocating for ORV use have felt threatened and intimidated
from speaking or making themselves known.14 It will be important for these views to be aired as
a part of the process and to bring diverse stakeholders together in an organized, ongoing
conversation.

Fifth, the negotiated rulemaking process will be designed to be completed within a fixed time,
running contemporaneously with the NEPA process.

However, we do believe that the chances for a final consensus are modest, for the following
reasons.

     (a) We cannot fully ascertain at this time if there is a sufficient “bargaining range” to ensure
         that a regulatory negotiation will certainly succeed. To do so would require more in-
         depth discussions with key stakeholders. We also believe that the range of options to
         address the conditions on CAHA, and the factors affecting those options, are not yet
         identified or developed, and will require in-depth understanding and balancing of
         different scientific, legal, technical, economic, and practical considerations.

     (b) We recognize that people have very diverse and strong views on this subject. For some,
         ORV use is seen as a right and is embedded in the very culture and life of the Outer
         Banks. For them, limiting ORV use would be painful, to say the least. For others, ORV
         use at CAHA is seen as an unregulated activity that is “out of control,” has been
         unmanaged for too long, threatens the ecosystem, and must be brought in compliance
         with the rest of the National Park System now. The strength of views and the deeply held
         values that inform those views will require patience and respect of others from
14
   We encourage community leaders, organizational leaders, and governmental leaders to pro-actively create an
atmosphere for full involvement in the dialogue and process.


CAHA Negotiated Rulemaking Feasibility Report          33                                          April 4, 2006
        participants and careful process design and facilitation from the mediation team to be
        channeled effectively into constructive dialogue and negotiation.

     (c) When stakeholders pursue channels outside of a negotiated process, such as filing a
         lawsuit or using political influence, we believe this both reduces the willingness of at
         least some stakeholders to participate in negotiated rulemaking (either to initiate the
         process or to stick with it) and reduces the chances of success. As we have learned
         during this assessment process, the filing of litigation and pursuing political intervention
         increases tensions. Lawsuits engender counter lawsuits. Both approaches make it more
         difficult to explore the full range of views and the options for addressing them.
         Furthermore, once litigation is filed that may directly or indirectly affect the issues under
         discussion in a potential regulatory negotiation, the Committee’s options for resolution as
         well as resources available to NPS and other participants to develop, hone, and agree may
         be constrained, possibly severely. These actions may also make it less likely that
         stakeholders will share information with each other. As noted elsewhere, it will be
         important for Committee representatives to use the Negotiated Rulemaking process as the
         venue for exploring and working through these issues and reaching a resolution. Also,
         the DOI and NPS leadership need to demonstrate support for the process by directing
         stakeholders who come to them back to the process.

     (d) While parties have stated a willingness to abide by groundrules, tensions are high, many
         do not believe the other parties are willing or in some instances capable of abiding by the
         groundrules, many parties feel under attack, some parties feel intimidated and threatened,
         and some have engaged in personal and ad hominem attacks and threats. In this climate
         of fear, anxiety, hostility, and conflict, it will be even more challenging for parties with
         very divergent views to sit down at the table, clearly express their interests and ideas, and
         jointly explore options. Committee representatives also will bear the burden of not
         getting too far ahead of their respective constituents and working to with those
         constituencies to foster joint problem solving on the Committee and publicly to ensure
         they support and do not undermine the process. Representatives on the Committee will
         need to participate in good faith. We describe what we mean by good faith later in this
         report. In our view, core democratic principles of decency, civility, and tolerance will
         have to be exercised if the process is to succeed.


5.      NEGOTIATED RULEMAKING WILL NOT UNREASONABLY DELAY THE NOTICE
OF PROPOSED RULEMAKING
Given current frustrations with the status quo by all involved (including NPS), the negotiated
rulemaking process should not delay either the notice or the final regulation. The NPS will be
conducting a related NEPA process for the proposed plan and regulation, and the negotiation
process should be completed within the same time period. In the absence of a negotiation
process, the NPS could be subject to significant (and perhaps multiple) litigation and conflicts
may only grow worse. Given this likely litigation if a consensus approach is not reached, we find
that Negotiated Rulemaking might even speed up, in comparison, the establishment and
implementation of a final rule.



CAHA Negotiated Rulemaking Feasibility Report     34                                     April 4, 2006
Legal considerations, including the petition for rulemaking, the notice of intent to sue, and
lawsuits against NPS15 provide a powerful incentive for the NPS to proceed expeditiously on
finalizing a plan and a regulation. The level of tension and frustration with NPS management is
high and needs to be de-escalated.

We believe that organized, formalized negotiated rulemaking offers the best opportunity
available at this time for de-escalating conflict, rebuilding relationships, producing regulations in
a timely manner, reducing the threats of litigation, providing a forum to explore (and as
appropriate develop) the science that can form the basis for informed decision-making, and
offering diverse stakeholders a direct and meaningful role in shaping regulations. At their best,
collaborative processes generally and regulatory negotiations specifically offer the opportunity
for an agency to develop regulations that are far better informed. They are shaped by diverse
interests, organized around innovative ideas that emerge through dialogue, and are actually
complied with after being put into effect.

We do have a few concerns, however.

     (a) The rulemaking needs to be carefully coordinated with the NEPA process that will guide
         the management planning and assessment of impacts leading to a record of decision.
         This is doable if there is careful coordination among various offices of NPS and with the
         mediators, and clear communication with stakeholders about the complexities of
         integrating these two processes.

     (b) It can take time for the formal Committee charter and membership to be approved by the
         Secretary of Interior, sometimes longer than anticipated. If approval of the charter and
         Committee membership were significantly delayed for whatever reasons, this would
         increase the chances that the negotiated rulemaking could unduly slow the rulemaking
         process, particularly as we are sensitive to the expressed needs of the local stakeholders
         for the process to be conducted during the “off-season” with no intensive Committee
         work during the summer months to avoid adversely affecting their livelihoods.


6.       AGENCY HAS AND IS WILLING TO COMMIT ADEQUATE RESOURCES TO
SUPPORT THE COMMITTEE
NPS has indicated a willingness to commit resources, financial and technical, for the process.

Regulatory negotiation, while holding the promise of reducing or avoiding litigation costs and
producing a regulation with greater acceptance and compliance, does require an intensive
commitment of time and resources, by NPS and other participating agencies and stakeholders.




15
    Recent lawsuits include The Cape Hatteras Access Preservation Alliance, et al. v. Department of the Interior, et.
al., (344 F.Supp. 2d 108 (D.D.C. 2004)) and the lawsuit concerning ORV use in national parks filed by NPCA,
Friends of the Earth, Bluewater Network Division, and The Wildlands Center for Preventing Roads.against DOI.


CAHA Negotiated Rulemaking Feasibility Report             35                                            April 4, 2006
While we cannot predict accurately at this time the extent of the financial or time commitment or
the exact work plan16 for the negotiated rulemaking, past experience suggests that:

     •   committees usually have to meet no less than four times and often more than six times,
         two days each, over a year to two years (we anticipate that, in this case, the Committee
         may need to meet as many as eight separate times);
     •   committees have to generate ideas and explore and narrow issues through work by
         subcommittees and workgroups between plenary meetings of the full committee;
     •   stakeholders have to take time to inform and organize their constituents, get and give
         feedback, and review documents and proposals;
     •   information (some scientific and technical) has to be developed and analyzed to support
         the committee in generating options and in decision-making;
     •   the agency has to do extensive work to prepare for meetings and coordinate among
         various levels of the agency; and,
     •   the agency has to fund the facilitation and technical services resources necessary to make
         the process a success.

Accordingly, both the NPS and the stakeholders should consider if they are willing to commit
sufficient resources to the negotiation process and if the benefits of expending those resources
outweigh the costs of doing so.


         Given the intensity of the conflict, the diverse range of interested parties, and the
         expectation that the Committee will advise both on the general NEPA
         management planning effort as well as the specific rulemaking, we conclude that
         this particular negotiated rulemaking will likely take additional resources and time
         as compared to other similar efforts elsewhere.


We do encourage everyone to consider the “as compared to what” question. Because a
rulemaking has to proceed in any case, there are various costs associated with the standard
approach to rulemaking under the Administrative Procedures Act and planning under NEPA, and
potential costs associated with ensuing litigation, political intervention, or delay. The regulatory
negotiation ought to be compared to these alternatives.


7.   AGENCY, TO THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH LEGAL
OBLIGATIONS, COMMITS TO USE COMMITTEE CONSENSUS AS THE NOTICE OF
PROPOSED RULEMAKING
NPS, to the maximum extent possible, consistent with its legal obligations, has indicated a
willingness to use the consensus of the Committee with respect to the proposed regulation for the
regulation proposed by the agency for notice and comment, as described in the Negotiated
Rulemaking Act, if the process proceeds.
16
   A detailed process map and workplan laying out the steps and schedule for the Committee will be developed with
the Committee once the charter is approved.


CAHA Negotiated Rulemaking Feasibility Report          36                                          April 4, 2006
RECOMMENDATIONS AND CONDITIONS FOR A NEGOTIATED
RULEMAKING PROCESS


RECOMMENDATIONS
We offer the following process recommendations and explain them in more detail below.


        1. PROCEED WITH REG NEG:
        In our best professional judgment, we conclude that a consensus-based
        negotiation to develop a management plan and proposed implementing
        regulations can be convened, can yield important benefits even if agreement is not
        reached, and has a modest chance of success if the conditions described below are
        met.


Our recommendation is based on the interviews, our analysis of the requirements for a negotiated
rulemaking, our analysis of the current situation, and our experience with similar processes at
other national seashores and elsewhere. We believe that the diverse interests, complex issues,
and current positions will test the problem-solving abilities of all participants, as outlined in our
findings. And, if the parties are not able to create a basic atmosphere of collaboration, consensus
will be even more difficult if not impossible to achieve. At the same time, we do find that
diverse parties are strongly interested in participating in the process to see if it can be a means to
resolve some or even most of the issues.


        2. STAGE THE PROCESS:
        The Park and its stakeholders should undertake a “staged” process to initiate and
        conduct this unique and challenging Regulatory Negotiation.


Should the Park decide to proceed with Negotiated Rulemaking, we suggest that the process
might take the following form.

2.1     Issue a Notice of Intent to Proceed with Negotiated Rulemaking.
The NPS should issue a Notice of Intent to proceed with Negotiated Rulemaking laying out the
need for the effort (based in part on this final assessment) and a proposed list of interests and
representatives to make up a Committee as soon as possible. We have recommended and
implemented a pre-convening process for identifying the interests and representatives that would
constitute this Committee (explained further below). We recommend that the Park use the
results of this pre-convening process, including the public comment received on our suggested
Committee make-up, in formulating their final list of Committee members and alternates.




CAHA Negotiated Rulemaking Feasibility Report    37                                      April 4, 2006
2.2     Hold Collaboration Training Workshops for Stakeholders.
The NPS should sponsor one or more collaboration training workshops with the proposed
members and alternates of the Committee and interested members of the public. This joint
training will provide an opportunity for diverse stakeholders to interact with one another prior to
formal negotiations, and to learn more about collaborative processes and how to effectively
participate in them. Because the Committee will not be final nor formal at this point, this
training should be open to both proposed members and alternates and members of the public to
ensure any FACA requirements are met. A notebook should be prepared for participants that
includes the most significant documents relevant to the management of ORV use. In addition,
NPS should consider holding additional workshops as appropriate once the Committee charter is
approved.

2.3      Develop Draft Groundrules for the Process.
The proposed Committee and interested members of the public, jointly with the mediators,
should develop a draft set of groundrules for the process. These groundrules would be based on
the results of this Feasibility Assessment, recent interactions between some of the stakeholders,
groundrules of similar past processes, and discussion among stakeholders. The groundrules
would not become final or be operable until the Committee was formally appointed and
convened in its first formal meeting. Again, because the Committee will not be formally
constituted or authorized at this point, this discussion should be open to both proposed members
and alternates and members of the public. Furthermore, the advice on groundrules that emerges
should be directed at the mediators, not the Park (who should, of course, be part of the
discussions). This dialogue might take part at the end of the collaborative training recommended
above. Ultimately, the groundrules will serve as a social contract among participants about how
they will interact with one another during the process to ensure at a minimum basic respect,
civility, and tolerance. Furthermore, participants need to be able to operatationalize those
groundrules in the behavior they exhibit toward one another in meetings and workshops, as well
as between face-to-face meetings. An inability to establish civil behavior among stakeholders
will likely hamper the process, if not end it early.

2.4     Participate in Joint Education.
The stakeholders have a wealth of information and knowledge about the human, ecological and
cultural resources associated with Cape Hatteras National Seashore. In order to ensure the
Committee can start with all members and alternates fully informed, we recommend that the
Park, the proposed Committee members and alternatives, and interested members of the public
engage in a joint education process. This might take place over two days and include Park
presentations on its rules, regulations, and policies, and Executive Orders; local stakeholders’
presentations on the local economy and culture; stakeholders’ presentations on ecological and
environmental resources, and the piping plover recovery plan; and national groups’ presentations
on the kinds of rules and regulations developed or considered elsewhere in other national parks
or at similar seashores and barrier islands.

2.5    Develop a Charter and Final Membership for the Negotiated Rulemaking
Committee under the Federal Advisory Committee Act.
For the Committee to begin working, the Secretary of Interior must approve final committee
membership, designate a federal official to serve as the formal coordinator/point of contact for


CAHA Negotiated Rulemaking Feasibility Report   38                                     April 4, 2006
the process, and approve a charter that, among other things: defines the Committee’s objectives
and the scope of its authority; sets forth the estimated number and frequency of Committee
meetings; and identifies the period of time necessary for the Committee to carry out its work.
This process can take time to complete and is subject to the final and sole discretion of the
Secretary of Interior and the Office of Management and Budget. If the NPS decides to proceed,
the final charter, Committee membership, and the date and location of the first meeting of the
Committee are published in the Federal Register least 15 days prior to the first meeting of the
Committee.

2.6     Provide Advice on Developing the Preliminary Alternatives for the NEPA
Management Planning Process.
Once formally convened, the likely first steps of the Committee will be to finalize its
groundrules, identify critical issues for committee discussion, determine how those issues should
be analyzed and approached by the Committee, and identification of information needs. The
Committee then will provide the NPS advice on the development of preliminary alternatives for
the broader NEPA management planning and public involvement process. While the Committee
will only be one source of input to the Park in the broader NEPA process, it will play an
important role in identifying, discussing, and developing the range of alternatives for managing
ORV use.

2.7     Analyze Impacts and Seek Consensus on the Preferred Alternative for the NEPA
Management Planning Process.
The next likely steps in the process will be for the Committee to analyze impacts and explore
ways to address them. After that step is completed, the Committee will then seek consensus on
the preferred alternative to be put forward in the draft final Management Plan, which will in turn
be subject to public comment as part of the NEPA process. Again, it is important to stress that
the Committee’s participation in developing the management plan development will supplement
and not supplant the public involvement steps required under NEPA. If the Committee cannot
reach agreement on a likely preferred alternative (again, still subject to public input and final
adoption by the NPS), it may not make sense to proceed further with the Committee’s work,
given that the rule must be based on and detail the preferred alternative that would be formalized
in the Management Plan’s Record of Decision.

2.8     Seek Consensus on ORV Management Plan and Regulations for Cape Hatteras
National Seashore.
Finally, after the above steps are completed, the Committee would seek consensus on a detailed
set of regulations for managing ORV use on Cape Hatteras National Seashore. The Committee
would not likely seek to draft the exact language of the regulations, but rather, to develop the
outlines and details of a final regulation that the NPS could then, if consensus were reached,
develop into the specific language required for federal rules and regulations. Please do note that
once the Park developed that rule language, the proposed rule would still be subject to the formal
and final rulemaking process, which includes listing in the federal register, public comment, and
final acceptance by the Department of Interior.




CAHA Negotiated Rulemaking Feasibility Report   39                                    April 4, 2006
        3. ESTABLISH MILESTONES:
        We recommend that the NPS and the Committee establish a set of key milestones
        for assessing the Committee’s progress and determining if the process is meeting
        the interests of the participants and, if not, for ending the process even if the
        Committee has not completed its work. This approach can ensure clarity on the
        process and provide opportunities to improve how the Committee is working
        together.


We recommend that the NPS and its stakeholders establish a set of key milestones for assessing
the Committee’s progress and determining if the process is meeting the interests of the
participants. At each step of the process, the parties can jointly review progress and make
adjustments or improvements as needed. At each step, NPS and stakeholders can also determine
whether to continue to the next step or to “exit” the process if parties cannot collaborate and/or if
the process is not meeting their needs or interests. One example would be negotiating, putting
into practice, and abiding by collaborative groundrules. If the parties couldn’t come to
agreement on groundrules, this would be a good indication that the process could not go forward.
Successful adoption of groundrules helps lay a solid foundation for effective collaboration.

We also have proposed a set of activities prior to final and formal approval of the Committee.
These activities will help initiate the process while completing the formal paperwork process,
which can take some time, and will need to be open and available to members of the public to
abide by all proper FACA requirements. In this way, when the Committee is formally and
finally constituted, it can immediately begin specific and substantive work.


        4. USE CONSENSUS:
        We recommend a consensus decision/rule for the Committee.

According to the Negotiated Rulemaking Act, “consensus” means “unanimous concurrence
among the interests represented on a negotiated rulemaking committee . . . unless such
committee agrees to define such term to mean a general but not unanimous concurrence; or
agrees upon another specified definition.” We recommend a consensus decision/rule for the
Committee, should one be convened.

The Committee will have to determine, by unanimous agreement of all Committee members, the
definition of consensus, whether it will require “full unanimous concurrence of all Committee
members” or “almost unanimity (i.e., agreement of all but one of the Committee members,
excluding NPS).” Using the “almost unanimity” definition prevents one party from derailing
the entire process. In any event, NPS will have to be part of an agreement for it to be considered
the “consensus of the Committee.” Similarly, the Committee will have to decide, again by
unanimous agreement, how to handle any lack of consensus




CAHA Negotiated Rulemaking Feasibility Report    40                                     April 4, 2006
Consensus ensures that minority views are respected and considered, that all who take part are
taken seriously by others in the process, and that agreements reached have the ownership and
broad support of a great number of participants. Consensus also means a process by which
participants seek to listen to and understand the interests of others, to generate ideas and options,
to offer proposals as well as raise concerns and criticisms, and to work diligently to meet all
participants’ needs and interests to the greatest extent possible. When a group reaches consensus
that does not necessarily mean that everyone equally likes the final agreement. Some
participants may love the agreement, some may like it, and some may reluctantly go along with
it. Consensus does mean that everyone who consents will support the agreement going forward,
or, at the least, not fight or undermine its implementation. Consensus decision making also
ensures that a Committee can be composed of a diversity of interests and organizations without
having to resort to careful and contentious “vote counting” when forming the Committee (see
below). The notion of consensus is that it calls for much broader support than majority or even
super-majority voting.


        5. EXPAND THE COMMITTEE SIZE:
        We recommend that the NPS and Secretary of Interior establish a Committee that
        exceeds the 25-member limit in the Federal Advisory Committee Act. This is
        warranted to ensure the Committee is balanced and the range of interests with a
        stake in the issues are adequately represented.

As noted, the Negotiated Rulemaking Act allows for up to 25 members (unless a greater number
is determined to be necessary for the functioning of the committee or to achieve balanced
membership). In the draft recommendations, we sought to abide by this constraint and issued a
list with 25 names and in most cases a designated alternate. As described below in the
Recommendations to the NPS for Composition of the Committee, for the Committee to be
balanced and represent the range of substantial interests in the issues, we believe that the
Committee must exceed the 25 member limit, as permitted under the Negotiated Rulemaking
Act. At this time we are recommending to the National Park Service that the final Committee
include membership as listed in Appendix C.

We also recommend that there may be others that wish to have a specific liaison to the
Committee. Liaisons do not have formal membership on the Committee, but receive all
Committee correspondence and are provided opportunities to speak in addition to general public
comment periods. There are two potential kinds of liaisons. First, liaisons who can provide
advice on national commitments such as the Americans with Disabilities (ADA) Act. In
addition, the Committee may need to avail itself of various kinds of technical expertise,
potentially outside of the expertise of the Committee members.

Please also note that the NPS still is obligated to provide an opportunity for the public to
comment on the proposed Committee membership and balance if NPS decides to proceed. The
Negotiated Rulemaking Act states: “[p]ersons who will be significantly affected by a proposed
rule and who believe that their interests will not be adequately represented by any person
specified in a notice…may apply for, or nominate another person for, membership on the
negotiated rulemaking committee to represent such interests with respect to the proposed rule.”


CAHA Negotiated Rulemaking Feasibility Report    41                                     April 4, 2006
The public will be able to comment for 30 days once the Notice of Intent to Proceed with
Negotiated Rulemaking appears in the Federal Register. Please also note that the National Park
Service and the Department of Interior have the full and final authority to revise, refine, or alter
this recommendation for the number of Committee members.


ADDITIONAL CONSIDERATIONS
The following additional considerations could significantly improve the process and the
likelihood for success.

The Committee’s objectives and the scope of its authority as expressed in the charter needs
to allow the Committee to advise the NPS on actions related to interim ORV use
management while the reg neg process is underway.
This negotiated rulemaking would be unique. No formal regulations exist. The 1978 interim
ORV plan, or its variations, has never been formally and finally approved. ORV use will be
affected by the interim actions the NPS takes regarding protected species management and user
conflicts, the process and outcomes of the NEPA-guided ORV management planning process,
and the final regulations developed for ORV management on CAHA. Thus, we recommend that
the Committee have as its primary scope and decision-making authority (by consensus under the
Negotiated Rulemaking Act) the development of ORV use regulations. And, secondarily, but
importantly, the Committee should also be able to advise the NPS on: 1) interim issues directly
related to ORV use that may emerge during the negotiated rulemaking process, provided that it
can do so in a timely fashion without adversely affecting its ability to reach its primary goal of
agreeing on the content of a proposed regulation; and 2) alternatives development and analysis in
the NEPA process for management planning, including making a consensus recommendation for
a preferred alternative.

While the NEPA process and the negotiated rulemaking process will support and provide input
to the other, it must be clear that they are separate processes, occurring under different legal
authorities. The negotiated rulemaking process must not hinder or limit the NEPA study,
especially the identification and analysis of impacts or alternatives. As part of the NEPA
process, NPS must consider a full range of reasonable alternatives and involve the general
public. Similarly, the NEPA process must sufficiently document the analysis of alternatives and
impacts for NPS to make all necessary legal determinations concerning ORV use and the
management plan, including whether ORV use in particular areas adversely affects the natural,
aesthetic, or scenic values of that area. We are confident the negotiated rulemaking process can
be successfully and properly integrated with the NEPA process to meet the necessary legal
requirements while avoiding duplicative efforts and costs.

NPS and the Department of the Interior should expedite the necessary administrative
procedures to initiate negotiated rulemaking.
Getting underway with management planning and rulemaking is essential given the heightened
intensity of concerns and conflicts, pending and threatened litigation, and the need for the NPS to
come into compliance with its regulations. Approval of a negotiated rulemaking process and
committee membership can be a lengthy and complicated process, sometimes taking many
months. If NPS decides to go forward with the process, both we recommend the NPS and


CAHA Negotiated Rulemaking Feasibility Report    42                                      April 4, 2006
Department of the Interior expedite the administrative review and approval to initiate the process
as soon as possible

The NPS and Stakeholder representatives on the Committee need to provide consistent
leadership during the multi-year process to develop final regulations.
For stakeholders to trust in the process, for the Committee to build effective working
relationships, and to ensure that the NPS representative at the table will understand the range of
interests and possible trade-offs among various choices, the negotiated rulemaking will require
consistent, capable representation by someone from the NPS with appropriate authority. If the
process is to succeed, it will require both consistent personal NPS presence on the Committee
and on-going, steady commitment from NPS as an organization to the process as a whole. Thus,
we encourage the NPS, both organizationally and via staff, to provide the necessary leadership
during the process.

Similarly, Committee representatives must exercise leadership within their respective
organizations and constituencies to foster a climate of joint problem solving on the Committee
and publicly, to keep their constituencies informed, and to ensure their constituents support
rather than undermine the process. Committee representatives also must work with their
organizations and constituencies to foster joint problem solving by the Committee and through
the negotiated rulemaking process.

NPS should take advantage of the period between publishing the Notice of Intent to
Proceed with Rulemaking and the first meeting of the Committee to review the work of the
assessment team and determine whether the CBI/FCS team working under the auspices of
the U.S. Institute for Environmental Conflict Resolution is acceptable to the Committee
members to facilitate the negotiated rulemaking process.

Under the Negotiated Rulemaking Act, the facilitator for the negotiations of the committee is
subject to the approval of the committee by consensus. To ensure the Committee can get started
promptly once the charter is approved, the NPS should take advantage of the period between
publishing the Notice of Intent to Proceed with Rulemaking and the first meeting of the
Committee to review the work of the assessment team with the proposed Committee members
and determine whether the CBI/FCS team working under the auspices of the U.S. Institute for
Environmental Conflict Resolution (USIECR) is acceptable to the Committee members to
facilitate the negotiated rulemaking process. If not, the NPS will need to propose a substitute
facilitator to the Committee members. The USIECR can assist the NPS and proposed
Committee members with the review to determine whether the CBI/FCS team is acceptable, and
if necessary identify other potential facilitators.




CAHA Negotiated Rulemaking Feasibility Report   43                                    April 4, 2006
CONDITIONS TO ENSURE PARTICIPATION IN THE NEGOTIATED RULEMAKING
PROCESS

We have identified the following conditions that most likely need to be met for key stakeholders
to be willing to participate in the process. These conditions are based on our interviews, on-
going consultation with and feedback from stakeholders, and our best professional judgment
from past experiences.

A.      The focus and starting point of the negotiated rulemaking needs to be on how to
manage ORV use on CAHA consistent with all applicable laws, regulations, orders, and
policies, rather than if there will be any ORV use on the beach at CAHA. The proposed
regulation developed by the Committee and recommended to NPS must (a) be consistent
with and comply with all applicable laws, regulations, orders, and policies, (b) provide for a
diversity of visitor experience, (c) include enforceable mechanisms to manage ORV use;
and, (d) be implementable.
From our interviews, we have concluded that most, if not all, stakeholders recognize that ORV
use will continue in some fashion and in some areas within CAHA, provided that all legal
requirements can be met, including the specific requirements of Executive Order 11644 that
ORV use will not adversely affect natural, aesthetic or scenic values.

Though some would prefer to end ORV use completely on the beach, many of these interviewees
also recognize that ORV use is important to the experience of some users and to their values
about the local culture and economy. Some recognize that if managed appropriately, ORV use
could be compatible with natural resource protection and other visitor uses and could be in
compliance with federal laws and regulations. Though we cannot determine at this time what
specific management and regulatory options are likely to be acceptable, stakeholders and
Committee members should accept that the discussion would be centered on how best to manage
ORV use, not whether ORV use is an appropriate use within CAHA generally. In raising this as
the starting point for discussion, we make no judgments about whether ORV use is or is not an
appropriate use. For the collaboration and negotiation to be fruitful and for Committee members
to strive for resolution, the focus must be on “how” and “where” to manage ORV use on CAHA
consistent with all applicable laws, regulations, orders, and policies, rather than if there will be
any ORV use on the beach at CAHA.

 Even with this starting point for the Committee’s deliberations, we note that during the NEPA
process the public will be invited to develop a full range of possible alternatives for analysis,
which may include no ORV use, areas of seasonal closure, or areas of temporary closures for
protected species and various other management strategies.

To be successful, the Committee must agree on the outlines of a proposed regulation that meets
all applicable laws, regulations, orders, and policies, including providing for different uses of
CAHA by different visitors. The recommended plan/regulation should provide for a diversity of
visitor experience, accommodating both visitors who want to experience CAHA using ORVs and
those who want to experience a natural beach without vehicles or tire tracks. The development
of a plan to manage ORV use at CAHA must, by NPS policy and the Executive Orders, include


CAHA Negotiated Rulemaking Feasibility Report   44                                     April 4, 2006
designating clear routes for ORV use, provide for a diversity of visitor experience, and address
the primitive wilderness of the enabling legislation establishing CAHA. Moreover, under
Executive Order 11644, ORV use, as managed by the plan and proposed regulation, must not
adversely affect natural, aesthetic, or scenic values. Also, certain portions of CAHA may need to
be temporarily closed at certain times to meet legal requirements under the ESA and Migratory
Bird Treaty Act.

The Committee also must create a regulation that is enforceable both legally (meaning that NPS
can lawfully enforce the requirements and a court would uphold NPS authority in enforcing
those requirements) and practically (meaning that the NPS will have resources available to
ensure the regulation’s requirements can be enforced effectively). Almost all stakeholders
recognize the importance of, and expressed the need for, adequate mechanisms to enforce the
regulation on the beach, particularly so that law-abiding visitors are not penalized for the actions
of those who disregard the regulations or abuse their use of the beach. Many stakeholders also
pointed out that NPS presently has insufficient resources to monitor activity on the beach and
handle the current enforcement responsibilities. Given the current shortage of funding and
resources for both CAHA and NPS generally, the Committee and the NPS will have to address
both the legal enforceability of any regulation requirements and the availability of resources to
ensure those requirements can be enforced effectively.

B.     The NPS must establish interim plans for managing protected species and user
conflicts while the Committee is conducting its work. The NPS must consult with the
USFWS under Section 7(a)(1) and 7(a)(2) of the ESA and put in place a legally defensible
“livable” interim protected species management strategy. NPS also needs to address
conflicts between ORV and non-ORV users during the negotiated rulemaking process.
The Petition for Rulemaking and Notice of Intent to Sue and the lawsuits concerning wilderness
designations and ORV use in national parks have put the NPS on notice that it must have in place
and effectively implement an approach to managing protected species within CAHA as soon as
possible.

Until an interim protected species management strategy is established: 1) the NPS will remain
vulnerable to litigation; 2) stakeholders will be highly and understandably anxious (and perhaps
dubious) about how the NPS will act and what the NPS will do; and 3) protected species and
other management actions will be seen by some or many as ad hoc, unclear, and inconsistent.
Thus, the NPS needs to bring some measure of order, stability, and clarity to addressing
protected species in CAHA. In fact, many prospective participants in the negotiated rulemaking
process are waiting for NPS to develop and begin implementing an interim protected species
management strategy before finally and fully committing to participate in the negotiated
rulemaking process.

We note that NPS released the Environmental Assessment on the Interim Protected Species
Management Strategy (IPSMS) on January 18, 2006, and the public comment period closed on
March 1, 2006. We understand the NPS is in the process of evaluating comments, consulting
with FWS, and waiting to receive a Biological Opinion from FWS before finalizing the plan and
preparing the decision document for the plan. We also understand completion of the approval
process and implementation of the strategy is anticipated to occur in April 2006.



CAHA Negotiated Rulemaking Feasibility Report    45                                     April 4, 2006
Once completed, the NPS needs to determine whether the interested stakeholders are willing to
live with the Interim Protected Species Management Strategy and commit to participating in the
negotiated rulemaking.

Similarly, we encourage the NPS to address conflicts between ORV and non-ORV users likely to
occur during the time the Committee is working on the proposed regulation.

If the NPS is not able to adequately address interim management of protected species and visitor
conflicts while the negotiated rulemaking is underway in a manner that most stakeholders are
willing (however reluctantly) to live with during the regulatory negotiation the effort could be
hampered if not outright undercut by the immediate issues, actions and conflicts.

C.      To the greatest extent possible, the Committee should build a management
approach to ORV use “from the ground up” so as to build a new approach that is not
limited by previous interim plans.
We recommend that the Committee have the latitude to build a new approach that is consistent
with all relevant statutes and regulations but not limited by previous interim plans. Many of the
interviewees expressed concern about the starting point of the negotiations. Many do not find
the current implementation of the 1978 interim ORV plan or its variations widely accepted,
understood, or appropriate for the current situation. Thus, we recommend that the Committee
not be bound by any interim ORV plan or strategy (in whole or in part) now in effect or that
might be put into effect on an interim basis, and that the Committee have the freedom to generate
and explore a range of options for managing ORV use that will allow for innovation, creativity,
and a possible outcome that meets the needs of diverse constituents for the draft regulation. The
Committee certainly may be informed by past efforts at CAHA and elsewhere.

D.      Participating organizations and their representatives need to commit to making the
negotiated rulemaking process the primary and central focus of their efforts to address
issues related to ORV use on CAHA and to curtail using other means to influence the
proposed regulations during the negotiated rulemaking process.
For a negotiated rulemaking process to succeed, it needs to become the forum for and the focus
of the stakeholders’ primary efforts to address ORV management at CAHA. Based on
information from the interviews, it appears at the current time that various stakeholders are
pursuing their available methods and opportunities to influence NPS actions. These methods
include media and web campaigns, political campaigns, litigation, threats of litigation, and other
actions. The combination of practices by different stakeholders has created an environment of
confusion, distrust, conflict, impasse, and instability. If the negotiated rulemaking process is
well-designed and implemented, it holds the promise of bringing order, focus, and energy to
collaborative efforts to solve multiple problems and to meet diverse needs and interests.

However, if parties continue to pursue other actions outside of a collaborative process, the
negotiated rulemaking will be less effective, if not outright unhelpful or irrelevant. For instance,
if significant litigation is filed during the convening or once the negotiated rulemaking process is
underway, the litigation has the potential to usurp the collaborative process and send most
stakeholders into their respective “litigating corners.” Litigation will make communications and


CAHA Negotiated Rulemaking Feasibility Report    46                                     April 4, 2006
information sharing among the parties, particularly the named defendants, extremely difficult, if
not impossible. Attempting to influence decisions or other actions through political channels or
the media could have a similar effect on other stakeholders. Stakeholders may choose to pull out
of the collaborative process. The potential effectiveness of the negotiated rulemaking process
may be undermined, and the ability to build a shared, innovative, solution to the various
problems of ORV management could be lost.

To address these situations, we recommend that participation in the collaborative negotiated
rulemaking process enter into a “truce” with a few key commitments. These include the
commitment to:
     use the negotiated rulemaking and concurrent NEPA process for developing the
       management plan as the primary forums for working out the management plan and
       proposed regulations, and directing parties and constituents to the negotiated rulemaking
       process to air and address concerns and resolve conflicts;
     engage in dispute resolution with Committee members and commit to trying to resolve
       differences and concerns with Committee members or the Committee as a whole before
       taking action outside the Committee;
     follow a “no surprises” policy – meaning a Committee member will give the Committee
       advance notice before taking any significant unilateral legal or political action related to
       the proposed ORV management plan and regulations;
     deal externally with the media and others and on websites in accordance with the
       Committee’s agreed upon guidelines and groundrules;
     disclose relevant activities to keep the Committee reasonably informed of activities that
       relate to ORV use in CAHA; and
     negotiate in good faith (which is explicitly required under the Negotiated Rulemaking
       Act), which means a commitment to seeking a consensus on a proposed rule, supporting
       the Committee as a forum during its term, and not taking actions to undermine
       Committee efforts to build consensus.

Of course, Committee members are not expected to and will not waive or give up any rights to
taking other, independent actions, including litigation, even though their primary commitment
and effort will be to resolve issues through the collaborative process first, if possible. As part of
establishing the operating procedures for the Committee, the Committee will have to determine
the parameters of the “truce” in regard to process and behavior. Participants will need to discuss
how they will disclose and share with others their actions on related but separate issues such as
year-to-year protected species management within CAHA, USFWS critical habitat designation
process, and national-level NPS ORV management issues.

E.      Participating organizations and their representatives need to be willing to explore a
range of management options and scenarios, even if they at least initially find those options
unappealing or highly unlikely to be acceptable to their constituents.
Many stakeholders hold publicly stated strong views on one or another option for how ORV use
on Cape Hatteras National Seashore will be managed and regulated. It will be essential for
representatives on the Committee to explore a range of options for how driving might be
managed including options that, at least at initial reaction, might not be acceptable to them.
First, management planning requires the generation of multiple options, including no action and



CAHA Negotiated Rulemaking Feasibility Report    47                                      April 4, 2006
often its “opposite” – new and extensive action that some or many may find unacceptable – and
the possible options in between. Second, inventing and exploring a range of options, including
ones that some may find unappealing, helps to surface interests, concerns, and new ideas.
Sometimes by discussing unappealing options stakeholders respond by generating new ideas and
options that allow an altogether new and acceptable approach to emerge.

F.     NPS must commit, to the maximum extent possible consistent with its legal and
policy obligations, to use the consensus of the Committee as the basis for the regulation
proposed by NPS for notice and comment.
NPS has indicated it will use a consensus product from the Committee, provided “consensus”
means the agreement of the whole Committee, including NPS. For stakeholders to determine
whether the process can meet their objectives and trust the process, NPS must indicate their
commitment to use the product from the Committee if they reach consensus. Otherwise,
stakeholders may be reluctant to engage fully in the process and may seek to influence decisions
by NPS in other ways.

G.      NPS must establish a firm deadline by which – (a) the Committee will complete its
work and propose a regulation, or (b) if consensus is not possible, the negotiated
rulemaking process will be terminated, and NPS will take appropriate and timely action to
promulgate a regulation to regulate ORV use on CAHA.
Many if not all stakeholders are dissatisfied with the current situation. To forgo pursuing other
actions and decide whether to participate in the negotiated rulemaking process, stakeholders
want to know that the current situation will not go on indefinitely. They also want to understand
the expectations for participating in the negotiated rulemaking process and what will happen if
the Committee does not reach consensus. Clear deadlines established upfront are an important
part of a collaborative process to keep the group focused and working on development of the
plan.

Establishing a deadline also is consistent with the requirements of FACA and the Negotiated
Rulemaking Act. Under FACA, the charter for the Committee must specify the time period for
the Committee to carry out its work, and a FACA committee automatically terminates two years
after it is established, unless sooner terminated or extended (Section 9(c)(C), and 41 CFR 102-
3.55). We strongly encourage the NPS to establish the deadline in consultation with facilitation
team and taking into consideration the key milestones recommended above.

H.     Management of ORV use at Pea Island National Wildlife Refuge will not be
included in the negotiated rulemaking process as the Refuge is managed by USFWS, rather
than by the NPS.
The Pea Island National Wildlife Refuge is managed by the USFWS according to a different set
of laws and regulations than those that apply on CAHA, including the National Wildlife Refuge
System Administration Act. Consequently, it is not possible or appropriate for NPS to address
ORV use at the Refuge in a NPS regulation process.




CAHA Negotiated Rulemaking Feasibility Report   48                                   April 4, 2006
I.      Participating organizations and their representatives need to commit to working
civilly and collaboratively, even with those with whom they may disagree strongly.
Collaborative processes only work if the participants are committed to working civilly and
collaboratively, even with those who they may disagree strongly. In collaborative processes
such as regulatory negotiation, we don’t expect that everyone will agree with (or even like) each
other. We do expect that people will be passionate about the issues and be assertive in sharing
and seeking to meet their interests. We also expect people to behave civilly and respectfully.
We would also expect all participants, to the best of their ability, to work with their constituents
and publics to encourage civil behavior. In this spirit, we have seen people with very different
interests create inventive options, solve complex problems, and reach agreements that were hard
to imagine when they began discussions. Core democratic values of respect, civility, and
tolerance must be exercised in order for these processes to proceed.

One of the first acts of any FACA-chartered Committee is to review, revise as needed, and to
approve its operating procedures and groundrules. We also recommended that the proposed
Committee and interested members of the public, jointly with the mediators, develop a draft set
of groundrules for the process.

The following are examples of groundrules used by others in collaborative processes.

    Openness: Committee members will be open to all representatives and other points of view,
    and to possible outcomes. To enhance creativity during meetings, individuals are expected
    not to restrict themselves to the prior positions held by their organizations, agencies or
    constituencies.

    Listening: Committee members will focus on the speaker and what is being said rather than
    preparing your response. One person will speak at a time, with no interruptions.

    Fairness: Everyone is expected to participate. Committee members are expected to speak
    briefly, without grandstanding. Anyone (including the mediators) can call a break (i.e.
    caucus) for any purpose during a meeting.

    Respect: Committee members will disagree without being disagreeable and focus on the
    problem, not the person. Personal attacks in or outside of Committee meetings will not be
    tolerated.

    Communication: Committee members will keep their constituencies informed of
    deliberations and actively seek their input; avoid surprises; and inform other Committee
    members early and often of any issues, concerns, or worries. All members will be given an
    opportunity to be heard with the intention of encouraging the free and open exchange of
    ideas, views, and information prior to achieving consensus.

    Commitment: Committee members are expected to prepare for and attend each session;
    honor and stay on track with the meeting agenda and make changes to the agenda by
    agreement with the whole Committee; begin and end meetings on time; and get up to speed if
    you miss a session.


CAHA Negotiated Rulemaking Feasibility Report    49                                     April 4, 2006
    Good Faith: All Committee members agree to act in good faith in all aspects of the
    Committee's operation. They further agree that specific offers made in open and frank
    problem-solving conversations will not be used against any other member in future litigation
    or public relations. Good faith requires that individuals not represent their own personal or
    organization's views as views of the entire Committee, and that the views and opinions they
    express in the Committee deliberations are consistent with the views they express in other
    forums.

    Media Contact: Contact with the media during the negotiations is inevitable. The expectation
    is that contact with the media about the Negotiated Rulemaking effort will not be initiated by
    Committee members. “Negotiating through the media” will likely increase, not decrease,
    conflict. If contacted by the media, the expectation is that no one will characterize the
    behavior of another organization or its representatives participating on the Committee, or
    attribute motives. There should be no comments aimed at other participants, i.e., personal
    attacks are inconsistent with good faith. The Committee could, as part of its adopted
    guidelines, either decide on a self-imposed "gag order," or designate a person(s) who would
    interact with the media on its behalf.

    Web Sites: Many organizations planning to participate in the negotiations rely on the Web
    for a range of purposes. The Web can be used consistent with a good faith standard by
    avoiding characterizations of behavior, negative comments, or claims about the motives of
    other Committee members or their organizations in any web posting. Likewise, it is expected
    that Websites will not be used to speculate on information provided to the Committee or on
    the outcomes of discussions during the negotiations. Websites will be used for meeting
    notification and process updates rather than as a venue for debating or characterizing the
    process, or rebutting comments made by a Committee member or alternate, at least while the
    Committee is going about its tasks.

    Disclosure of Relevant Activities: There is an expectation that Committee participants will
    keep the Committee reasonably informed of their activities that relate to ORV use on CAHA
    and likely would be of interest to others. This includes legislative or policy initiatives,
    fundraising campaigns, or litigation, as well as other activities (e.g., such as rallies or similar
    campaigns).

    FOIA: All parties are expected to focus on the Committee as the forum for seeking
    information, so that desired information can be made available to all participants.




CAHA Negotiated Rulemaking Feasibility Report     50                                       April 4, 2006
RECOMMENDATIONS TO NPS FOR COMPOSTION OF THE
COMMITTEE

In accordance with the provisions of the Negotiated Rulemaking Act, NPS has asked the
assessment team to make recommendations regarding the proposed membership of the
Committee. The final authority for selecting and finalizing the membership of the Committee
rests with the Secretary of the Department of the Interior. We offer below our recommendations
for the Committee. These recommendations are intended to help ensure that a balanced
Committee of stakeholder representatives is convened to participate in the negotiated rulemaking
process.

In order to expedite the formation of a regulatory negotiation committee, should the NPS decide
to proceed, we initiated a “pre-convening” process to develop the potential make-up of a
Committee. We initiated this process with some trepidation because it placed us, the mediators,
working at the behest of all stakeholders, in the role of pre-selecting specific representations to a
potential committee and making judgment calls about one or another stakeholder group or
individual applicant. Nonetheless, to help expedite the process, potentially shorten the formal
administrative process, and assist the Park, the mediation team agreed to proceed.

In undertaking this pre-convening process: 1) we developed a list of general stakeholder
categories and solicited feedback on those categories; 2) we identified the possible number of
representatives for each stakeholder group, and provided multiple opportunities for feedback on
total numbers and balance among groups; 3) we solicited names of proposed representatives and
alternates via a public process for organizations or groups representing these broader stakeholder
groups; 4) we issued a draft list of potential members and alternates, based on those suggestions
and in consultation with each stakeholder group; and 5) we received and analyzed extensive
public comments on this potential list of recommended members and alternates.


PRE-CONVENING PROCESS

In April and May 2005, we completed our interviews for this feasibility report. In the draft
Assessment report, we listed the categories of stakeholders (but not names of possible
representatives) to be represented on a Committee. The draft report was provided to those we
interviewed in mid-June, and we received comments and feedback on the draft report from
twenty-six (26) people or organizations by the July deadline. We then worked to incorporate
concerns and suggested changes, including making the names of stakeholder categories more
specific, correcting names of organizations, increasing the proposed number of seats on the
Committee to achieve a better balance between the different stakeholder categories, and adding
additional perspectives to the findings section. We also adjusted allocation of seats to different
stakeholder groups based on extensive input from the interviewees.

To further the pre-convening, we developed a process through which organizations could
propose specific representatives and alternates for the Committee.



CAHA Negotiated Rulemaking Feasibility Report    51                                      April 4, 2006
    •   In August 2005, we issued a press release and sent an email to interviewees and other
        interested parties describing the process for proposing representatives and directing them
        to the forms to complete to propose individuals to the Committee.
    •   We welcomed these proposals until the end of September, and received proposals from
        over thirty different organizations.
    •   To ensure the legitimacy of nominations, we encouraged nominations to come from the
        President, Executive Director, Board, or other head of the nominating organization,
        agency, or coalition, in order to indicate the full backing of that nomination by the
        nominating group.

During the months of October and November 2005, we worked closely with nominees in each
stakeholder category to help them determine how they wanted to allocate the available seats.
Within the stakeholder groups we identified through our interviews, we encouraged
organizations to work among themselves to “self-select” their representatives. Within any one
stakeholder category, we encouraged all interested organizations to work together to select their
members and alternates, and then to collectively put these nominees forward. We recommended
this kind of self-selection process to: 1) allow stakeholders to select the individuals who would
best represent their interests; and 2) ensure support from within a stakeholder group for their
selected representatives.

In some cases, applicants within a stakeholder category were able to work out among themselves
how best to represent themselves on a Committee and we fully incorporated their advice to us.
In some cases, applicants within a stakeholder category could not agree on how the seats should
be filled. In these cases, we used our best professional judgment to suggest members and
alternates who were inclusive of a range of interests and geographic areas within stakeholder
groups, who might most fully and effectively represent the interest on the Committee.

In November 2005, we issued to all interviewees and via public notice, a list of potential
members and alternates for the Committee. We opened a “mediators’” public comment period
so that the public could advise us further on the potential composition of a Committee. By the
January 30, 2006 deadline for comments, we received public comments on the draft
recommendations for the make-up of the Committee from more than 140 individuals. We
analyzed these comments and in this final report, include revised recommendations to the NPS
for the make-up of a Committee, should one be formed.

With the release of this Feasibility Report, the list of recommended representatives and alternates
will be forwarded to the NPS for review. NPS will then review it and forward the list, with any
changes, to the Department of Interior. After approval by the Department of Interior, the Notice
of Intent to Establish a Negotiated Rulemaking Committee identifying the proposed Committee
members and alternates would be published in the Federal Register. There will be a 30-day
public comment period after publication, followed by a NPS analysis of the comments, and a
final decision on whether to proceed and if so the composition of the Committee, based on public
comments.

Once public comment is analyzed and the NPS determines whether or not to proceed, there are
additional steps under FACA to create the actual Committee and to begin deliberations. The



CAHA Negotiated Rulemaking Feasibility Report   52                                    April 4, 2006
NPS must prepare a Charter for the Committee and a final list of members (and alternates) and
submit these to the Secretary of Interior for approval. Once the Secretary of the Department of
the Interior approves such matters, these are published again in the Federal Register along with a
notice of the first meeting date. We have not ascribed times to these steps because we cannot
determine at this time how long such a final approval process will take.


STAKEHOLDER IDENTIFICATION
Through our interviews, we have identified the following broad, stakeholder groups. We
recognize that stakeholder groups include individuals and organizations with multiple interests
and concerns, and that many individuals may fit into a number of different named stakeholder
groups. Despite these limitations, we think the identification of stakeholder groups is useful to
help identify the diversity and range of views that need to be represented in a collaborative
process. The stakeholder groups we have identified are:


    •   Federal government                           •   Environmental and natural resource
    •   State government                                 conservation advocates including
    •   County government                                national, regional and state groups
    •   Civic and homeowner associations             •   Park user groups including those that
    •   Tourism, visitation and businesses               favor open access, ORV use,
    •   Commercial fishermen                             recreational fishing, and other park
                                                         uses such as bird watching,
                                                         swimming, water sports and beach
                                                         combing


COMMITTEE BALANCE OF STAKEHOLDER REPRESENTATIVES
In determining the number of seats on the Committee for each stakeholder group, we have
sought to be inclusive of the range of interests and to balance those interests with sufficient
representatives from each of a range of possible views. We have attached as Attachment C our
revised list of suggested representatives and alternates per stakeholder category. We offer this
revised list after extensive consultation with diverse stakeholders, comment on earlier drafts by
interviewees, a public application process, and a public comment period. We do provide below a
summary of public comments received on the December 2005 draft list of recommended
Committee members.

In order for interviewees and others to determine if the recommended composition of the
Committee is balanced, it is important to be clear about the decision/rule that we would
recommend for the Committee. In our view, because we recommend a consensus decision/rule
(see above), the exact numbers do not matter nearly as much. Any few members in a consensus
process can raise issues and concerns and the group has to seek to address those concerns and
issues, because agreement requires a high hurdle of all or almost all members saying “I can live
with it” to proceed.




CAHA Negotiated Rulemaking Feasibility Report   53                                     April 4, 2006
As noted above, we recommend that the final Committee include membership of those
representatives and their alternates listed in Attachment C.


MEMBERS, ALTERNATES, OBSERVERS, AND LIAISONS
To provide for more inclusion and participation, and to have replacements for those members
who may be absent, we also recommend that Committee members each have an alternate.
Alternates should attend every meeting and work closely with their member representatives.
Members should reflect their own views, as well as the views of their alternate, especially if the
alternate is from a different organization. To increase inclusiveness and participation, we
recommended, in some cases, that some alternate seats be filled with members from different
organizations than the member’s organization.

Even if someone is not a member or alternate, we encourage the process to allow individuals to
sign up as interested observers to receive all Committee mailings and documentation.


CRITERIA FOR REPRESENTATIVES
We recommend the following membership criteria for representatives in the Negotiated
Rulemaking process.

    •   Able to represent their organization or constituency.
    •   Able to speak with authority and make commitments on behalf of their organization or
        constituency.
    •   Seen as a legitimate and capable representative in the eyes of their organization or
        constituency.
    •   Willing to complete any necessary federal paperwork for FACA membership.
    •   Able and willing to abide by the ground rules of the process.
    •   Able to commit to the negotiated rulemaking as the primary focus of their efforts at
        addressing ORV use on CAHA.
    •   Able to advocate effectively for their organization or constituency’s interests and also
        able to consider the perspectives of others and seek common ground wherever possible.
    •   Able to attend meetings on the Outer Banks.

In short, representatives must be capable of effectively representing their group’s interests and
also be able to work effectively and collaboratively with others, including those whose views and
opinions may be quite different from their own.

Please note that in our pre-convening we determined that, at times, some of these criteria may be
in conflict with each other. In addition, in some cases a recommended member or alternate did
not meet all of these criteria but was recommended because they represented an interest that
otherwise would have no representation.




CAHA Negotiated Rulemaking Feasibility Report   54                                    April 4, 2006
SUMMARY OF PUBLIC COMMENT ON THE PRE-CONVENING RECOMMENDATIONS
By the January 30, 2006 deadline we received public comments on our recommendations for the
make-up of the Committee from more than 140 individuals. We are attaching those comments,
verbatim, as an appendix to this final report (Appendix F). Below we summarize the key
comments, recognizing that the reader should review the comments directly to capture the full
range of nuanced views provided by those who took the time to comment.

    •   Due Diligence: Some commenters asked CBI to conduct due diligence with some
        organizations on the nominations of certain individuals for membership. The general
        concern raised was that the proposed member and/or alternate did not adequately
        represent the range of views of the organization or that he or she was appointed without
        due process within that organization. After the public comment period, we sought
        clarification from the Greater Kinnakeet Shores Homeowners, the Cape Hatteras Bird
        Club, and the Avon Property Owners Association on this issue. We received
        confirmation from each of these three organizations that they had indeed selected the
        proposed representatives. Their confirmation/clarification is attached as Attachment E.

    •   Balance: Many commenters raised concern about balance of the draft recommended
        Committee. Some commenters stated that too few local interests were represented on
        the proposed Committee, thus unfairly weighting the Committee toward national or
        environmental interests. Others raised concern that not enough environmental and
        conservation advocates were represented, thus unfairly weighting the Committee toward
        ORV interests. Others noted that too many Committee members were affiliated with the
        Outer Banks Preservation Association (OPBA), thus providing an imbalance of
        organizational participation. In short, we received conflicting and strongly felt views on
        the balance of interests on our recommended Committee. We do note that given the
        diversity of public comments received, obtaining unanimous support on the exact
        composition of a Committee is unlikely.

    •   Underrepresented Interests: Some commenters raised concern about missing or
        underrepresented interests. Many comments raised concern that local Hatteras Island
        businesses were not adequately represented by the Chamber of Commerce or by the
        Dare County Visitor’s Bureau. The comments stated that these broader organizations
        generally have not been able to express the unique interests of numerous small
        businesses on Hatteras Island specifically versus on the Outer Banks as a whole. Others
        stated that few to no lifetime residents were represented on the Committee. Others noted
        that the general visitor to Hatteras was not clearly represented by any proposed members
        or alternates. Others noted that ORV groups are underrepresented vis a vis fishing, open
        access, and environmental interests. A few noted that Park visitors with disabilities were
        under or not represented. In addition, the state requested two seats on the Committee,
        one for the Marine Fisheries and one for the Wildlife Resources Commission, given their
        different missions and interests. More specifically,

        o Local Hatteras businesses stated clearly that they have historically not been served as
          well as they would have liked by the larger, umbrella business and visitors
          organizations on the Outer Banks and that they have a very direct stake in the


CAHA Negotiated Rulemaking Feasibility Report   55                                    April 4, 2006
          outcome of the process, economic and otherwise. Furthermore, they have gone to
          substantial effort to organize over one hundred businesses during the assessment
          process.
        o The general visiting public may not be adequately represented by existing
          recommended members, although such groups as the OPBA, the Dare County
          Visitor’s Bureau, and homeowners associations should represent at least some
          visitors. The National Parks Conservation Association, the one group that nationally
          represents visitors as an active part of their mission, filed litigation during the
          assessment process, raised concern among other stakeholders, and ultimately
          withdrew their application for membership. Thus, it is not clear if there is any one
          organization that can fulfill this national interest.
        o Some commenters raise concern that there was no direct representative users/drivers
          with disabilities as related to the Americans with Disability Act (ADA). Although,
          some organizations such as the North Carolina Beach Buggy Association and OPBA
          noted that their memberships include individuals with disabilities and that they
          include these issues in their purview.

    •   Legitimacy: Some commenters raised concerns about the legitimacy of certain
        recommended members or alternates. Comments ranged from expressing concern about
        certain individuals’ ability to abide by groundrules, to past, negative interactions on
        similar issues, to certain organizations not being clearly established or legitimate. We
        note the following specific issues or concerns raised under this broad category of
        concern.

        o Several commenters raised concern about whether Real Kiteboarding, a business,
          adequately represented the broader interest of water sports. Commenters stated that
          this interest was too narrow and could better be represented by one kind of umbrella
          group or another. Since no general non-industry water sport organization exists at the
          local level and none applied at the regional or national level, some noted that such
          interests might better be represented by local business groups such as the Chamber,
          the Visitor’s Bureau, the Cape Hatteras Recreational Alliance, and/or the Cape
          Hatteras Business Alliance (depending on how they view their interests).
        o Some commenters raised concern about the Cape Hatteras Recreational Alliance.
          Comments included that the proposed representative has a conflict because he is
          married to a Park Service employee, that the group exists in name only, and that
          membership is not publicly posted nor can one find a way to join the organization.
          We received other comments strongly supporting this nomination. We do note that
          while this group is not as old or well-established as many others, there was no other
          local organization we identified that represented primarily non-driving beach
          interests. We are also recognize the concern we heard at length during this
          assessment that those with local views differing from ORV interests are discouraged
          from speaking out and do not have a clear voice for their viewpoint.
        o Some commenters raised concern about the Hatteras and Frisco Homeowners
          Coalition. Comments included that the group exists in name only, that membership is
          not publicly posted nor can one find a way to join the organization, and that the
          interest is too narrow (i.e. a small number of property owners concerned about beach



CAHA Negotiated Rulemaking Feasibility Report   56                                  April 4, 2006
            use in front of their properties) and should be folded into a broader organization or
            coalition. While we recommend the Hatteras and Frisco Homeowners Association as
            an alternate to the Cape Hatteras Recreational Alliance, we note their interests are not
            fully overlapping. We believe that the Hatteras Landing organization’s interests are
            aligned with the Hatteras and Frisco Homeowners Association. We note that there is
            no Outer Banks-wide organization that represents non-resident property owners. We
            also note that some organizations such as the Visitors Bureau, Chamber of
            Commerce, and Homeowners Associations represent at least the interests of some, if
            not many, non-resident property owners. We note that there is no known, organized
            local or regional group whose primary interest is pedestrian beach use and public
            safety (although we recognize the counties have public safety responsibilities within
            their respective jurisdictions). By recommending Hatteras and Frisco Homeowners
            Coalition we are seeking to recognize the concern that those with views differing
            from ORV interests are discouraged from speaking out and do not have a clear voice
            for their viewpoint.

    •    NPS Proposed Representatives: Some commenters requested that the National Park
         Service provide the names of its nominees.


RECOMMENDATIONS TO THE NPS FOR A COMMITTEE COMPOSITION
In Attachment C, we recommend to the NPS the makeup of a Committee, should one be formed.
Again, please note that the NPS and the DOI have the full authority to revise, alter, or differ from
these recommendations. We expect that all recommended individuals will abide by all
groundrules to ensure a productive and constructive dialogue.


         6. COMPOSE THE COMMITTEE:
         We recommend in Appendix C twenty-eight (28) representatives for the make-up
         of the potential Regulatory Negotiation Committee.


Below, please note the changes to the draft composition in response to the public comments.

    1.      Added an additional seat for the State so that the differing interests of the Marine
            Fisheries and Wildlife Resources Commissions can both be represented.
    2.      Added an additional seat for environmental and natural resource interests, given
            public comment about overall Committee balance.
    3.      Added an additional Business and Tourism seat for the Cape Hatteras Business
            Alliance, given public comment, to ensure sufficient representation of local
            businesses on Hatteras Island and because the Alliance has the support of over 100
            local businesses.
    4.      Identified the NPS representatives – Michael B. Murray, Superintendent, Cape
            Hatteras National Seashore, as member; and, R. Thayer Broili, Chief of Resources
            Management, Cape Hatteras National Seashore, as alternate, though the NPS reserves
            its right to make changes.


CAHA Negotiated Rulemaking Feasibility Report    57                                     April 4, 2006
    5.      Changed the alternate recommendation for the Coalition of NPS Retirees, upon their
            willingness and agreement to do so.
    6.      Identified a broader, more inclusive organization to represent water sport users on the
            Committee. After receiving public comment about the need to broaden the
            constituency and interest of water sports users, we worked with the applicants to
            bring into the potential process a larger, broader organization with national scope and
            reach to represent those involved in water sports.

In addition, we make the following suggestions.

    1.      We suggest that, if appropriate, the Park consider creating a liaison role for a
            legitimate individual, group, or organization who can monitor the proceedings of the
            Committee to ensure compliance with the Americans with Disability Act (ADA).
    2.      We have not recommended adding an additional seat for the ORV stakeholder
            category. We believe that the interests of ORV drivers are capably, effectively, and
            broadly represented by a national and regional group, the United Four Wheel Drive
            Associations and the North Carolina Beach Buggy Association. Their representatives
            are experienced and respectful advocates, who will bring a national, regional, and
            local view to the issues. Though we know that not all active ORV groups will have a
            seat at the table, they can and will be able to work with their Committee
            representatives to ensure their interests are met. Furthermore, other groups such as
            the OBPA, and representatives of other organizations who also are OBPA members,
            actively and capably represent ORV interests, among others, as well.
    3.      We encourage the Hatteras and Frisco Homeowners Coalition to broaden its
            membership and constituency by representing all non-resident property owners across
            the National Seashore who do not otherwise feel represented by existing homeowners
            or business associations.
    4.      In order to ensure further legitimacy and credibility, whenever possible, we
            encourage recommended groups that are not currently incorporated (i.e., as a non-
            profit or other form) to seek to do so. For these groups, a clear, public charter, by-
            laws, decision rules, and other more formal organizational elements will help the
            group to participate on a Committee and to represent, reach out to, and gain the
            consent of their members.




CAHA Negotiated Rulemaking Feasibility Report    58                                    April 4, 2006
ATTACHMENT A – INTERVIEW PROTOCOL

                                 [DRAFT] Interview Protocol
INTRODUCTION

As you know, the National Park is considering the possibility of using collaborative processes
such as negotiated rulemaking to develop an ORV Management Plan and associated regulations
for Cape Hatteras National Seashore. The U.S. Institute for Environmental Conflict Resolution
and the NPS have asked us to assess the feasibility of using negotiated rulemaking to address
these ORV issues. The idea of regulatory negotiation, or reg-neg for short, is straightforward.
Representatives of the responsible agency and those with a stake in the regulations work together
to prepare the content of a proposed rule before the agency submits the rule to the formal
rulemaking process (listing in the federal register, public comment and hearings, and so forth).
Just such a process was used by Cape Cod National Seashore and Fire Island National Seashore
to develop off-road vehicle regulations.

Our immediate task is to interview representatives of the range of interests and views on the
issues. Our intent is to identify the points of agreement and disagreement among the interested
parties and determine the opportunities for, and obstacles to, building consensus on how to
manage ORV issues. This conversation is confidential meaning that we will not attribute
specific comments or findings to anyone by name or position. Confidentiality protects your
interests and, we hope, encourages open conversation.

Points to note:

    •    Based on these interviews, we will assess whether or not a regulatory negotiation or
         other collaborative approaches are likely to be productive at this time.

    •    If such a process seems fruitful, we will suggest a process for how to proceed as part of
         our Assessment Report. The draft Assessment Report will be sent to all parties whom
         we interviewed for your feedback before the report is finalized.

    •    We understand that our final Assessment Report will be an important consideration as
         NPS determines how to proceed with the ORV Management Plan and regulations.

    •    Do you have any questions about EMS/CBI before we begin?

BACKGROUND

    1.      What is your affiliation to Cape Hatteras National Seashore?

    2.      Do you represent an organization that is concerned about vehicle use on Cape
            Hatteras? If so, what is your position and role in that organization?




CAHA Negotiated Rulemaking Feasibility Report    1                                     April 4, 2006
    3.      What is your mailing and email address, phone, fax, and so forth, so that we can send
            you a copy of the draft Assessment Report?


THE ISSUES

    1.      How do your organization’s members use the Seashore?

    2.      Tell us about your organization’s views on the current use of off-road vehicles on the
            Seashore? Generally? In particular geographic areas of the Seashore?

    3.      What changes, if any, would you like to see in the ways ORV use is managed in the
            Seashore?

    4.      If you were to imagine Cape Hatteras National Seashore twenty years from now,
            ideally, what would you like it to be?


THE CURRENT MANAGEMENT

    1.      What are the best points of the current system for managing off-road vehicles on the
            Cape Hatteras National Seashore?

    2.      What are the worst points of the current system for managing off-road vehicles on the
            Cape Hatteras National Seashore?

    3.      What improvements for managing off-road vehicles in the Seashore have promise,
            given your organization’s interests?


INTERESTED PARTIES

    1.      Here are the groups and organizations that might represent the parties we’ve
            identified so far who have an interest in CAHA ORV planning and regulation.
            Looking at the list of interviewees, are there important perspectives not included?
            What are your views on how we have categorized the interested parties’ interests?

    2.      Which organizations might most credibly represent these broad categories?

    3.      Have any key groups been excluded in discussion on these issues in the past? If so,
            who are they and do you know why they were excluded?

    4.      4. What kinds of information (and why) are needed to help address ORV use on the
            Seashore? Is this readily available? How could the needed information be gathered?




CAHA Negotiated Rulemaking Feasibility Report    2                                    April 4, 2006
THE PROCESS

    1.      What are the advantages of undertaking a collaborative effort at preparing a
            management plan and regulations for ORV use on Cape Hatteras?

    2.      What do you expect would be the most significant barriers to achieving a consensus
            on such a plan and regulations? How can these barriers best be overcome?

    3.      Would your organization be willing to work together with other parties in a
            collaborative planning and negotiated rulemaking process? Why or why not?

    4.      What kind of forum for negotiations (number of players, length and number of
            meetings, meeting times and locations) would be most successful in garnering
            widespread support for the effort?

    5.      What kind of groundrules or protocols are needed to ensure constructive interaction?

NOTE: Please note that this interview protocol was used as a guide for interviews among the
neutral EMS/CBI team and Cape Hatteras stakeholders. All questions may or may not have been
asked depending on the interests and comments of the stakeholder and the length of time
available for the interview.




CAHA Negotiated Rulemaking Feasibility Report    3                                    April 4, 2006
ATTACHMENT B – PEOPLE INTERVIEWED

We recognize that individuals who may represent an interest often have multiple interests and
affiliations. The distinctions we make are based on what individuals themselves told us was their
primary affiliation for the purpose of these interviews.


    David Allen, North Carolina Wildlife Resources Commission
    Robert Barritt, Jr., 4 Plus Four Wheel Drive Club
    Pete Benjamin, USFWS Ecological Services
    John Bone, Outer Banks Chamber of Commerce
    Carla Boucher, United Four Wheel Drive Associations
    Michael Bryant, USFWS Pea Island National Wildlife Refuge
    Derb Carter, Southern Environmental Law Center
    Chuck Clusen, Natural Resources Defense Council
    John Couch, Outer Banks Preservation Association
    Jeffrey Crow, State Historic Preservation Office
    Jan DeBlieu, Community Member
    Jeffrey DeBlieu, The Nature Conservancy, Nags Head Woods Preserve
    Jim Donofrio, Recreational Fishing Alliance
    Ann Drain, Rodanthe-Waves-Salvo Civic Association
    Betty Duke, Rodanthe-Waves-Salvo Civic Association
    C.A. Duke, Rodanthe-Waves-Salvo Civic Association
    Michelle Duval, Environmental Defense
    Bob Eakes, American Sportfishing Association
    Frank Folb, Avon Property Owners Association
    Michael Gery, Surfrider Foundation
    Matthew Godfrey, Sea Turtle Project, North Carolina Wildlife Resources Commission
    Walker Golder, North Carolina Audubon Society
    Mary Helen Goodloe-Murphy, Rodanthe-Waves-Salvo Civic Association
    Dave Goodwin, Outer Banks Preservation Association
    Michael Halminski, Community Member
    Larry Hardham, Cape Hatteras Anglers Club
    Steve Hissey, Outer Banks Preservation Association
    Destry Jarvis, Outdoor Recreation and Park Services, LLC
    Charles Jones, North Carolina Department of Coastal Management
    Leslie Jones, The Wilderness Society
    David Joyner, North Carolina Beach Buggy Association
    Natalie Kavanagh, Outer Banks Preservation Association
    Stephen Kayota, Frisco and Hatteras Village Homeowners Coalition
    Jim Keene, North Carolina Beach Buggy Association
    Roy Kingery, Hatteras Village Civic Association
    Scott Kovarovics, The Wilderness Society
    Scott Leggat, Outer Banks Chamber of Commerce
    William Lomnicki, United Mobile Sportfishing Association
    Virginia Luizer, Community Member


CAHA Negotiated Rulemaking Feasibility Report   1                                   April 4, 2006
    Jim Lyons, Community Member
    Sidney Maddock, Community Member
    Wayne Mathis, North Carolina Marine Fisheries Commission
    Noah Matson, Defenders of Wildlife
    Carolyn McCormick, Outer Banks Visitors Bureau
    Jason Rylander, Defenders of Wildlife
    Joyce Salmon, Capital City Four Wheelers
    Bob Sebrell, Ocracoke Civic and Business Association
    Britan Shackelford, Charter Boat Association
    Ricki Shepherd, Hatteras Village Civic Association
    Sean Smith, Bluewater Network
    Dennis Stewart, USFWS Pea Island National Wildlife Refuge
    Susan West, Hatteras-Ocracoke Auxiliary of the North Carolina Fisheries Association
    Pat Weston, Greater Kinnakeet Shores Homeowners, Inc.
    Stan White, Dare County Board of Commissioners
    Sarah Winslow, North Carolina Department of Marine Fisheries




CAHA Negotiated Rulemaking Feasibility Report   2                                 April 4, 2006
                        ATTACHMENT C: CAPE HATTERAS NATIONAL SEASHORE:
                           NEGOTIATED RULEMAKING FEASIBILITY REPORT
            PROPOSED STAKEHOLDERS FOR POTENTIAL REGULATORY NEGOTIATION COMMITTEE∗

          Prepared by the Consensus Building Institute, Cambridge, MA, and Fisher Collaborative Services, Alexandria, VA,
                         Under Contract to the United States Institute for Environmental Conflict Resolution

STAKEHOLDER                #         SUB-              MEMBER NAME AND                     ALTERNATE NAME AND
GROUP                    SEATS       STAKEHOLDER       ORGANIZATION                        ORGANIZATION
See Note #1                          GROUPS
Federal Government           2                         Michael Murray, Superintendent,     R. Thayer Broili, Chief of Resources
                                                       Cape Hatteras National Seashore     Management, Cape Hatteras
                                                                                           National Seashore
                                                       Pete Benjamin, US Fish and          David Rabon, US Fish and Wildlife
                                                       Wildlife Service, Ecological        Service
                                                       Services, Raleigh Field Office
State Government             2                         Wayne Mathias, North Carolina       TBD
                                                       Marine Fisheries Commission
                                                       David Allen, North Carolina         Susan Cameron, North Carolina
                                                       Wildlife Resources Commission       Wildlife Resources Commission
County Government            2                         Warren Judge, Dare County           Ray Sturza, Dare County
                                                       Bob Sebrelle, Hyde County (and      Kevin Howard, Hyde County
                                                       Ocracoke Business and Civic
                                                       Association)
Civic and                    3                         C. A. Duke, Rodanthe-Waves-         Pat Weston, Greater Kinnakeet
Homeowner                                              Salvo Civic Association             Shores Homeowners, Inc. and
Associations                                                                               Rodanthe-Waves-Salvo Civic
                                                                                           Association




CAHA Negotiated Rulemaking Feasibility Report   1                                 April 4, 2006
                                                        Frank Folb, Avon Property            Pat Weston, Greater Kinnakeet
                                                        Owners Association                   Shores Homeowners, Inc. and
                                                                                             Rodanthe-Waves-Salvo Civic
                                                                                             Association
                                                        Roy Kingery, Hatteras Village        Jeffrey Wells, Hatteras Landing
                                                        Civic Association                    Homeowners Association
User Groups                  1       Open Access        David Goodwin, Outer Banks           John Alley, Outer Banks
                                                        Preservation Association             Preservation Association
                             2       Off-Road Vehicle   Carla Boucher, United Four           Lyle Piner, United Four Wheel Drive
                                     Use                Wheel Drive Associations             Associations
                                                        Jim Keene, North Carolina Beach      David Joyner, North Carolina Beach
                                                        Buggy Association                    Buggy Association
                             3       Recreational       Larry Hardham, Cape Hatteras         Robert Davis, Cape Hatteras Anglers
                                     Fishing            Anglers Club                         Club
                                                        Patrick Paquette, Recreational       TBD
                                                        Fishing Alliance (RFA)
                                                        Bob Eakes, American                  Carol Forthman, American
                                                        Sportfishing Association (ASA)       Sportfishing Association
                             3       Other Users        Rickey Davis, Cape Hatteras Bird     Raymond Neal Moore, Cape
                                                        Club                                 Hatteras Bird Club
                                                        Jim Lyons, Cape Hatteras             Steven Kayota, Hatteras and Frisco
                                                        Recreational Alliance                Homeowners Coalition
                                                        Trip Foreman, Watersports            Matt Nuzzo, Watersports Industry
                                                        Industry Association, Inc.           Association, Inc.
Commercial                   1                          Michael Peele, North Carolina        William Foster, North Carolina
Fishermen                                               Fisheries Association                Fisheries Association




CAHA Negotiated Rulemaking Feasibility Report       2                               April 4, 2006
Tourism, Visitation          3                            Scott Leggat, The Outer Banks        Sam Hagedon, The Outer Banks
and Businesses                                            Chamber of Commerce                  Chamber of Commerce
                                                          Carolyn McCormack, The Outer         TBD
                                                          Banks Visitors Bureau
                                                          See Note #2 Below
                                                          Judy Swartwood, Hatteras Island      Stacy Stacks, Hatteras Island
                                                          Business Alliance                    Business Alliance
Environmental &              4       National             Jason Rylander, Defenders of         TBD
Natural Resource                                          Wildlife
Conservation                                              Destry Jarvis, Natural Resources     TBD
Advocates                                                 Defense Council and the
                                                          Wilderness Society
                                                          Robert Milne, Coalition of NPS       Dwight F. Rettie, Coalition of NPS
                                                          Retirees                             Retirees
                                                          TBD, See Note #3 Below               TBD
                             2       State/Regional/      Derb Carter, Southern                Jeffrey DeBlieu, The Nature
                                     Local                Environmental Law Center             Conservancy
                                                          Walker Golder, North Carolina        Sidney Maddock, National Audubon
                                                          Audubon                              Society
TOTAL
PROPOSED                    28
MEMBERS


EXPLANATORY NOTES:

    (1)     Please also note that groups who identify themselves primarily as user or access groups may also have strong
            environmental and conservation values. Likewise, groups who identify themselves primarily as environmental advocacy
            groups also may have many members who are users of the Park. The distinction we make here is for the purposes of
            convening the Committee and is based on how groups characterize their primary mission and objectives. We recognize
            that individuals who have been proposed to represent a particular interest often have multiple interests and affiliations.



CAHA Negotiated Rulemaking Feasibility Report     3                                   April 4, 2006
    (2)     The Outer Banks Visitors Bureau represents a wide range of tourism, visitor, and business interests within Dare County.
            The Outer Banks Visitors Bureau is funded by the occupancy and prepared meals taxes, collected in Dare County.

    (3)     In order to address the balance of interests as raised in public comment, we are recommending an additional environmental
            and natural resource advocacy seat. This seat might be filled by our national, regional, state, or local environmental group,
            but will require identifying an appropriate representative. This should be done by the NPS during their convening, should
            they decide to proceed.




CAHA Negotiated Rulemaking Feasibility Report    4                                     April 4, 2006
ATTACHMENT D: BASIC PRINCIPLES FOR AGENCY
ENGAGEMENT IN ENVIRONMENTAL CONFLICT RESOLUTION
AND COLLABORATIVE PROBLEM SOLVING17

Informed Commitment Confirm willingness and availability of appropriate agency
                    leadership and staff at all levels to commit to principles of
                    engagement; ensure commitment to participate in good faith
                    with open mindset to new perspectives

Balanced, Voluntary           Ensure balanced inclusion of affected/concerned interests; all
Representation                parties should be willing and able to participate and select
                              their own representatives

Group Autonomy                Engage with all participants in developing and governing
                              process; including choice of consensus-based decision rules;
                              seek assistance as needed from impartial facilitator/mediator
                              selected by and accountable to all parties

Informed Process              Seek agreement on how to share, test and apply relevant
                              information (scientific, cultural, technical, etc.) among
                              participants; ensure relevant information is accessible and
                              understandable by all participants

Accountability                Participate in the process directly, fully, and in good faith; be
                              accountable to all participants, as well as agency
                              representatives and the public

Openness                      Ensure all participants and public are fully informed in a
                              timely manner of the purpose and objectives of process;
                              communicate agency authorities, requirements and
                              constraints; uphold confidentiality rules and agreements as
                              required for particular proceedings

Timeliness                    Ensure timely decisions and outcomes

Implementation                Ensure decisions are implementable consistent with federal
                              law and policy; parties should commit to identify roles and
                              responsibilities necessary to implement agreement; parties
                              should agree in advance on the consequences of a party being
                              unable to provide necessary resources or implement
                              agreement; ensure parties will take steps to implement and
                              obtain resources necessary to agreement


17
  This is a joint Office of Management and Budget – Council on Environmental Quality memorandum on
environmental conflict resolution dated 11/28/05.


CAHA Negotiated Rulemaking Feasibility Report        1                                        April 4, 2006
ATTACHMENT E: RESPONSES FROM ORGANIZATIONS TO
PUBLIC COMMENTS




CAHA Negotiated Rulemaking Feasibility Report   April 4, 2006
ATTACHMENT F: PUBLIC COMMENTS RECEIVED DECEMBER
2005-JANUARY 2006 ON THE DRAFT LIST OF PROPOSED
STAKEHOLDERS FOR POTENTIAL REGULATORY
NEGOTIATION COMMITTEE

We included in this attachment any correspondence we received from stakeholders
regarding the draft report or the draft preconvening recommendations.

Due to the large size of this attachment (9.3MB and 480 pages), it can be found at:
http://www.cbuilding.org/projects/hatteras/appendixF.pdf




CAHA Negotiated Rulemaking Feasibility Report                                         April 4, 2006

				
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